Transparent Connections: Arbitrators, Attorneys, Parties and Social Media Disclosures

By: Mitchell E. Zamoff, Assistant Dean and Professor of Law and ADR, University of Minnesota Law School, with Michelle Skipper, Vice President, AAA-ICDR Commercial Division

Social media plays a crucial role in professional networking and relationships. This raises important questions for arbitrators, who must maintain high standards of impartiality and avoid potential conflicts of interest, as well as for attorneys and parties, who have an opportunity to delve deeper into the suitability of potential arbitrators on their cases.

Fostering Trust, Transparency, and Ethical Conduct 

Unlike the court system, where judges are assigned randomly to cases, parties in arbitration usually have input into the selection of their “judge” —their arbitrator—by considering the arbitrator’s subject-matter expertise, case-handling experience, and impartiality. The first two are relatively easy to ascertain with some research into curriculum vitae and publications; it is not as easy to determine an arbitrator’s impartiality toward the subject matter of the case or even the parties involved.

Arbitrator disclosures concerning conflicts of interest typically involve the nature, extent, and duration of any relationship with a party, a party’s representative, or a witness; if the connection is professional, social, or familial; and if the association will affect the arbitrator’s ability to act impartially.

The irony is that although social media has become the leading way to connect, arbitrators typically are not asked about their social media connections and activity. Nor are there specific guidance or standards on arbitral social media disclosures in applicable statutes and rules. Under the Federal Arbitration Act (FAA) and state statutes, arbitration awards can be vacated for general “evident partiality.” Commonwealth Coatings, the Supreme Court’s only evident partiality decision, was decided over 50 years ago, well before social media arrived on the scene.

Arbitrators must decide whether to disclose their social media relationships with the parties, lawyers, and witnesses who appear before them in arbitrations. Those who are transparent may fear that they will be unfairly disadvantaged in the marketplace for arbitral services, but there are meaningful ethical and reputational risks to arbitrators who fail to reveal their social media activity adequately. Losing parties in arbitrations may seek to vacate awards based on undisclosed social media relationships. 

Differing Perspectives

Many arbitrators believe that they know the significance (or lack thereof) of their social media connections and should have discretion to decide which to disclose. At present, many arbitrators do not conduct searches of their social media platforms before making disclosures. Some arbitrators disclose their social media connections to the participants in an arbitration, but many do not.

On the other hand, attorneys who represent parties in arbitrations generally expect arbitrators to disclose whether they are connected on social media with the participants in an arbitration. These attorneys would like the benefit of this information in navigating the arbitrator-selection process. 

Consequences of Non-Disclosure

The failure to disclose social media relationships with arbitration participants could have serious consequences. Arbitration awards could be vacated for evident partiality based on undisclosed connections. Arbitrators who fail to disclose virtual relationships later determined to be material face ethical and reputational risk. Significantly, absent consistent disclosures, arbitration parties are unable to realize one of the primary benefits of arbitration—the ability to meaningfully participate in the selection of the neutral.

Proposed Guidelines for Arbitral Disclosure of Social Media Activity

A good rule of thumb would be to disclose all ongoing social media connections with arbitration participants that arise out of affirmative conduct by the arbitrator. This would comply with all ethical and legal disclosure standards while imposing practical research obligations on arbitrators.

Rationales for the Guidelines

While some arbitrators may be dismissive of their social media relationships, the fact that an arbitrator has taken action to connect and stay connected with an arbitration participant on social media creates at least an appearance of partiality from the perspective of the parties.

Before deciding whether to select an arbitrator to decide its dispute, a party and its counsel would want to know if that arbitrator had taken action to connect with an opposing party, lawyer, or witness whose credibility that arbitrator will need to evaluate. 

As part of their disclosures, arbitrators may explain their general approach to social media engagement or provide the context for any particular social media connection.  

Examples Using Common Social Media Platforms

The main social media categories used by arbitrators are social networks (such as Facebook), business networks (such as LinkedIn), and blogs and microblogs (such as X). Guidelines for arbitrator disclosure of connections with arbitration participants on these platforms follow.

Social Networks

• Search for and disclose all friendships or their equivalent with arbitration participants.
• If an arbitrator follows an arbitration participant, disclose.
• However, if an arbitration participant follows an arbitrator’s page, do not disclose unless the arbitrator took affirmative action to permit the follow. 
• Do not disclose “likes” or other reactions to posts unless they relate to the subject matter of the arbitration. These are one-time comments that do not give rise to ongoing relationships.
• Bottom line: All ongoing social networking relationships involving affirmative arbitrator conduct might create an appearance of partiality from the perspective of the parties and should be disclosed.

Business Networks

• Search for and disclose connections or their equivalent with arbitration participants.
• Disclose if an arbitrator follows an arbitration participant.
• Do not disclose if an arbitration participant follows the arbitrator unless the arbitrator took affirmative action to permit the follow.
• Do not disclose “likes” or other reactions to posts unless they relate to the subject matter of the arbitration.
• Bottom line: All ongoing business networking relationships involving affirmative arbitrator conduct might create an appearance of partiality from the perspective of the parties and should be disclosed.

Blogs and Microblogs

• Disclose if an arbitrator follows an arbitration participant.
• Do not disclose if an arbitrator is followed by an arbitration participant unless the arbitrator took affirmative action to permit the follow. 
• Do not disclose an arbitrator’s likes, comments, and retweets unless they relate to the subject matter of the arbitration.
• Bottom line: When an arbitrator follows an arbitration participant on a blog or microblog, it might create an appearance of partiality because the arbitrator has affirmatively chosen to receive a feed of all content posted by that participant. Such connections should be disclosed.

Summing Up

Arbitrators should disclose known or reasonably discoverable ongoing social media relationships with the parties, lawyers, and witnesses in an arbitration—as opposed to episodic interactions that do not result in ongoing connectivity—arising out of their own affirmative conduct.

Sample Disclosure Language

Arbitrators should consider adding language such as the following to their conflicts disclosures:

The only social media platforms on which I have active accounts are LinkedIn and X (formerly Twitter). I have conducted a search of these platforms in connection with this matter and confirm (1) that I am not connected to any of the individuals or entities whose names were provided to me for purposes of my conflicts check, and (2) that I do not follow any of those individuals or entities on those platforms.

Of course, if the arbitrator is connected with one or more arbitration participants on social media using the guidelines outlined above, this language should be modified to disclose those connections.