With Facebook exceeding 900 million active users worldwide and LinkedIn reaching more than 175 million users, it seems virtually everyone with an electronic device has jumped into the social media pool. Even Pope Benedict XVI has a Facebook application called “Pope2You” that allows you to send messages and digital images to the Pope and in return “hear his words, see photos and receive his messages … ”
In such a world, why wouldn’t it make sense for lawyers, judges, arbitrators and mediators to take full advantage of the new interactive methods for promoting what they do, keeping in touch with colleagues, expressing opinions and educating the public? These goals are certainly worthwhile, but when it comes to neutrals (arbitrators and mediators), social media can have unanticipated consequences that merit careful consideration.
For neutrals the pitfalls of social media are illustrated by a recent case from the Federal Court of Canada. Under legislation passed by Parliament, disputes between the postal service, Canada Post, and its labor union had to be decided by a “final offer” arbitrator appointed by the Labour Minister from a list submitted by the union and the postal service. The arbitrator would choose between the final offers and that choice becomes the binding agreement.
The Labour Minister picked a lawyer who was on the list of acceptable arbitrators submitted by the union. After the selection, the union asked the arbitrator to recuse himself because years before he had represented the postal service in a dispute with the union and had also been active in the governing conservative party’s activities in Quebec. The union argued this showed that he would be biased in favor of the postal service’s position.
The arbitrator declined to recuse himself asserting that the claims were not grounds for disqualification since his representation of the postal service was years in the past, and he had ceased all conservative party involvement.
On appeal to the Federal Court, the union bolstered its case by pointing out that the arbitrator’s then currently available Facebook page contained links to conservative party groups under his Facebook’s “Activities and Interests” section and that among the arbitrator’s friends on the site were both the Labour Minister who appointed him as well as the minister who was responsible for overseeing Canada Post. Shortly after the Facebook issues were raised, the arbitrator removed the links from his page.
The court ordered the arbitrator to recuse himself and instructed the Labour Minister to appoint a new arbitrator. The court relied on the arbitrator’s Facebook postings to conclude that the concerns about the arbitrator’s possible bias had merit, despite the passage of time since his representation of the postal service and his active involvement in conservative party matters. The court wrote that “a reasonable and sensible person” could conclude that bias might still be present. It was not persuaded that the arbitrator had effectively cured the matter by deleting the offending Facebook references after the issue was raised.
If this case is a harbinger of things to come, neutrals will have to consider how much and how freely they want to participate in social media. They will also have to consider what the consequences are when seemingly innocuous postings are made or friending someone who may be no more than a casual acquaintance or contact. These concerns would apply not only to sites such as Facebook and LinkedIn, but also to Twitter and YouTube.
Arbitrators frequently have stringent disclosure requirements imposed on them by federal or state law and codes of ethics or rules of arbitration service providers. The degree to which relevant social media sites or activity should or must be disclosed will present novel issues in the future and may generate more challenges post award to whether the arbitrator complied with disclosure obligations.
Those who are selecting arbitrators and mediators for a dispute will also certainly make part of their due diligence in selecting neutrals a search of social media sites connected to the neutral to determine if the person is indeed impartial and independent.