By Ann Gosline, Marc Greenbaum and Sheila Mayberry

Law360 (June 16, 2020, 4:30 PM EDT) --

Ann Gosline

Marc Greenbaum

Sheila Mayberry

The COVID-19 pandemic has profoundly shaped the conduct of virtually every American institution, labor arbitration among them. Since early March, conducting in-person labor arbitrations has been and is likely to remain difficult, if not impossible.

The accepted norms for conducting in-person hearings have been upended due to requirements for maintaining social distancing; the reluctance of participants, including arbitrators, to conduct such hearings; and the heightened health risks posed by traveling to hearings.

The results of those challenges are obvious. The parties cannot resolve their disputes in a timely fashion. Also, the therapeutic value of arbitration is lost, replaced with uncertainty and instability. Employees, employers and labor organizations are left in a decisional netherworld at a time when the challenges posed in the workplace require stability and enhanced cooperation.

The labor arbitration community is not burying its head in decisional sand. As in the past, it is seeking to meet unforeseen challenges, this time by offering video hearings, using platforms such as Zoom and WebEx.

The video hearing is not a panacea. The in-person contact and the relationships developed through those contacts cannot be readily duplicated in a two-dimensional venue.

The parties' ability to resolve disputes immediately prior to or during an arbitration hearing is likely to be hindered. Routine tasks, such as managing exhibits, may be more difficult. Some advocates and arbitrators are concerned that the lack of personal interaction may impact the fact-finding process, including the arbitrator's ability to assess witnesses' demeanor.

This is not a one-sided equation. Video hearings can offer tangible benefits to the parties. They can spare parties the cost of transporting the arbitrator and witnesses to a hearing's location. They can afford the parties a more diverse pool of arbitrators who will accept cases located in more remote locations without having to encounter the difficulty of getting there.

Making the decision to utilize a video hearing platform requires answering multiple questions. They include:

• What videoconferencing options are available?
• Can arbitrators require a video hearing in an appropriate case?
• Is a video hearing appropriate for a particular case?[1]

What videoconferencing options are available?

Before all parties agree or disagree to engage in a video hearing process, they must understand the options that various private suppliers of video platform software provide. There are a number of platforms available, and that are becoming available, in the private market, with some offering more options than others.

Some are deemed more secure at keeping private information from hackers. Some are user-friendly and some are daunting to learn. Parties who are not technologically savvy will have to rely on colleagues who are more technically nimble to advise them on the best tools available. The cost of a platform subscription may be a factor, but many arbitrators, parties, some appointing agencies — such as the American Arbitration Association — and many court reporting companies provide videoconferencing platforms.

Most parties will lean toward platforms that are user-friendly and intuitive. At the moment, Zoom has been a successful platform in that market. Companies use the platform for internal and external business uses, while individual contractors enjoy its ease of use and relatively lower cost (at the moment). Other platforms that have become popular include WebEx, GoToMeeting and Google Teams. Still others are trying to catch up in the marketplace.

Advocates and arbitrators need an easy-to-manage platform to multitask during a hearing. They must learn and practice how to operate the platform. For some, it may feel like learning how to play the piano for the first time.

Arbitrators must consider their level of comfort with using videoconference platforms and decide if they want to accept a case if the parties request a video hearing. Arbitrators will have to consider their comfort with using the video hearing platform.

Since March, the National Academy of Arbitrators, the Federal Mediation and Conciliation Service, and several state agencies have been training arbitrators to use these platforms, in particular, Zoom. The American Arbitration Association has also made training resources available.

Many arbitrators believe that if they do not learn these platforms, their practices may shrink. As a result, numerous arbitrators have undertaken training to help them decide whether this new world is a place to which they wish to travel.

Advocates realize that, in some circumstances, arbitrators may require using a video hearing platform. As a result, advocates must learn to assess the pros and cons of using various platforms.

Can arbitrators require a video hearing in an appropriate case?

Few American collective bargaining agreements explicitly provide for arbitration hearings using a video platform. The parties drafted agreements on the assumption that grievances would be resolved in an in-person arbitration hearing. The parties did not anticipate a pandemic such as COVID-19.

Although the parties have not likely anticipated utilizing a video arbitration process, they remain free to agree to conduct arbitration hearings using a video-based platform. Some are doing so.

As uncertainty about conducting business as usual continues, parties are frequently agreeing to schedule hearings with the assumption that the hearing will be in person, and they are also agreeing to utilize video hearings if an in-person hearing is not feasible. Others are arranging a hybrid of video and in-person hearings in which the arbitrator is the only person participating by video and the parties are either in one or two rooms in the same location.

If the parties cannot agree on whether to utilize a video platform, can the arbitrator order that an arbitration be heard on that basis? If a case is being held under the auspices of the AAA, the arbitrator may have such authority under Rule 17 of the Labor Arbitration Rules, which provides as follows: "Upon the request of either party or the AAA, the arbitrator shall have the authority to convene a scheduling conference call and/or issue a Notice of Hearing setting the date, time and place for each hearing."

The most critical question is whether an arbitrator can mandate a video hearing absent the parties' agreement. That, in turn, largely depends upon whether doing so is consistent with the arbitrator's ethical responsibility to the parties as embodied in the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes. The National Academy of Arbitrators has answered that question in the affirmative, with an asterisk.

When only one party agrees to go forward with a video hearing, the arbitrator must make a difficult choice. In Advisory Opinion No. 25,[2] issued on April 1, the National Academy of Arbitrators considered whether an arbitrator could order a matter to proceed by way of a video hearing at the request of one party over the objection of the other.

The opinion outlined factors that an arbitrator should consider in deciding whether to order a video hearing when one party opposes it. The opinion states, in relevant part:

If agreement is not reached and it is necessary for the arbitrator to decide the issue of whether a matter will proceed by way of a video hearing over an objection, the arbitrator must consider the applicable circumstances and context of the request. Where, for example, a global pandemic makes it virtually impossible for an in-person hearing to be safely conducted, that factor may weigh in favor of the video hearing option, particularly if the hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters, such as an emergency health and safety issue. Government travel restrictions and family and health considerations of counsel or witnesses may also weigh in the arbitrator's decision to order or not order a video hearing. The factors favoring a video hearing may, in the arbitrator's judgment, be offset by countervailing factors, such as a party's lack of necessary equipment, difficulty in preparing and marshaling witnesses, or other limiting considerations. Further, the substance of the grievance might suggest to the arbitrator that a delay to allow for an in-person hearing does not seriously prejudice the rights of the parties.

Ultimately, the arbitrator may decide that an arbitration hearing can go forward by video hearing despite the objections from one of the parties. After considering the factors outlined in the advisory opinion, the arbitrator must determine whether it is possible to provide effective service in a fair and adequate hearing as required under Section 5A of the code. In making this determination, the arbitrator will consider the questions set out in the next section.

Is a video hearing appropriate for a particular case?

When the arbitrator and parties are considering a video hearing, it is becoming common for the arbitrator to schedule a prehearing conference, preferably on the video platform under consideration. In this prehearing conference, the parties and the arbitrator can prepare for and assess the potential problems they may encounter during a video hearing and whether there is too much at risk in proceeding in that fashion. They must assess:

• Their witnesses' comfort level on direct and cross-examination in a video format;
• How documents are to be submitted to the opposing parties, arbitrators and witnesses;
• Whether advocates' and witnesses' connectivity is stable; and
• Whether their witnesses' technological capability is sufficient to allow them to testify.

Arbitrators must consider their own capability in using the platform, including whether they have proper audio and video connectivity. They also must consider any ethical issues involved, such as the confidentiality of the hearing venue and whether there has been sufficient preparation on the part of the advocates and their clients to understand how to properly engage with the platform.

The arbitrator must speak with the parties prior to the hearing to discuss these concerns and the available options. Given all the potential problems that could arise during the hearing, the arbitrator must determine whether the parties can still have a fair hearing with the appropriate due process safeguards for all parties.

What does the future hold for videoconferencing in the labor arbitration?

As of this writing, whether a labor arbitration hearing is well suited to proceed via a video platform is, as all things are in these changing times, dependent on a myriad of factors. While a video hearing will be appropriate in some instances, it will not be in others.

However, it offers an option for parties who need a venue allowing them to move forward. It may not be perfect. There will be glitches. With commitment and patience, video hearings offer a path for resolving grievances in the time of COVID-19.

Willingness to proceed with video hearings varies by region and by party. Time will tell whether video labor arbitration hearings become routine. In the meantime, parties and arbitrators will continue to adapt in the era of COVID-19 and all that it brings to the practice of labor arbitration.

---

Ann Gosline, Marc Greenbaum and Sheila Mayberry are labor arbitrators and members of the National Academy of Arbitrators.

This article is excerpted from Lexis Practice Advisor®, a comprehensive practical guidance resource that includes practice notes, checklists, and model annotated forms drafted by experienced attorneys to help lawyers effectively and efficiently complete their daily tasks. For more information on Lexis Practice Advisor or to sign up for a free trial, please click here. Lexis is a registered trademark of RELX Group, used under license.

Law360 is owned by LexisNexis Legal & Professional, a RELX Group company.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] For more practical guidance on labor and employment arbitrations in general, see the Lexis Practice Advisor Labor & Employment Arbitration and Other ADR subtask page.

[2] https://naarb.org/wp-content/uploads/2020/04/CPRG-Advisory-Opinion-26-4.2020.pdf.

For a reprint of this article, please contact reprints@law360.com.