Originally from The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, Fifth Edition

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INTRODUCTION

The use of social media—namely, Internet platforms used by participants to form online communities and create and share information—has grown tremendously over the past two decades. There are now billions of users of social media platforms including Facebook, YouTube, Instagram, WhatsApp, TikTok, X, 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. In the past decade, online chat sites have begun to replace uses of email and mobile text. A specific social media platform’s user group may number in the hundreds, millions, or billions. 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 and normalized; however, that use is not free of issues.

The use of social media platforms by parties, counsel, witnesses, and arbitrators raises many issues in the arbitration process, including with respect to document preparation, legal research, information exchange, evidence, and award drafting. This Guidance Note is directed specifically to considerations of arbitrator disclosure. Other considerations regarding the use of social media and arbitration-related uses of artificial intelligence (“A.I.”) in the arbitration process are addressed more fully in various chapters of The CCA Guide to Best Practices in Commercial Arbitration.

Of course, arbitrators are not the only ADR neutrals who must navigate the use of social media, but social media presents unique challenges for arbitrators because of their obligations to be independent and impartial, 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 is subscribed automatically to receive postings from that website. A partner of an attorney in a pending matter may, with or without knowledge of the matter, invite the arbitrator for the matter to join her personal network or otherwise connect through a social media platform, 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.

There is limited direct law or other authoritative guidance for arbitrators on the appropriate use of social media and the obligations arising therefrom. (One recent exception is River Sub, Ltd v. Lerma, 2024 WL 2947742 (Tex. App. Jun. 12, 2024) (the cited Facebook postings and alleged deletions did not meet the evident partiality standard for vacatur of an award.)) Some courts and judicial ethics committees have examined the propriety of participation by judges in social networking, but although the roles of judges and arbitrators are analogous, they are not identical, and neither are the appropriate ways in which the two groups should use social media.