Appendix I: Guidance Note: Arbitration and Social Media - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Thomas D. Halket, Chair,
Stephen P. Gilbert,
Herbert H. (Hal) Gray, III, Atlanta, Georgia
Larry D. Harris,
Robert A. Holtzman, Los Angeles, California
William H. Lemons,
Peter L. Michaelson,
Edna Sussman, New York, New York
Irene C. Warshauer, New York, New York
John H. Wilkinson, New York, New York
The use of social media—namely, virtual communities and electronic networks used by participants to create and share information—has grown tremendously over the last decade. There are now billions of users of social media such as Facebook®, Twitter®, and LinkedIn®. Social media come in all shapes and sizes. There are those that are primarily social. Others are used for business networking. Still others—essentially electronic mailing lists—are used for sharing news and information of particular concern to defined user groups. A specific social media’s user group may number in the hundreds, millions, or even over a billion. As the use of social media has increased and spread broadly throughout the world, the use of social media by arbitrators has naturally also increased; however, that use is not free of issues.
Social media present unique challenges for arbitrators because of a neutral’s obligations of independence, of impartiality, to refrain from inappropriate ex parte communications and to maintain the confidentiality of the proceedings, among others. For example, a posting by counsel in an arbitration on a bar association website may be sent automatically to the arbitrator for the matter if he or she has signed up to automatically receive postings from that website. A partner of an attorney in a pending matter may, with or without knowledge of the matter, invite the neutral for the matter to join her personal network or otherwise connect through a social media network. And so on. To be sure, some of these issues are analogous to issues that can arise outside of social media, but many are unique.