Prior to the pandemic, virtual hearings for labor-management arbitration and mediation were rarely used. Since the start of the pandemic and with its acceleration, virtual platforms are now the dominant forums for arbitrations and mediations. Will the adoption of virtual interactions continue after the pandemic or will in-person approaches return?
The answer is we just don’t know. However, there are signs that virtual hearings will be used in some circumstances, such as in simple, low value/impact cases. In addition, certain aspects of the process are likely to continue, such as advance planning sessions and the acceptance of a virtual option where participants are otherwise unavailable.
The virtual world was growing even before the pandemic hit. Businesses, academics, scientists, groups with common interests, friends and families were conducting more and more video conferencing online. So what happens in our arbitration/mediation corner is part of a discussion on the broader impacts of the pandemic on, for example, telemedicine, online education, on-premises workplaces, commuting patterns and commercial real estate.
It was only a matter of time before hearing practices were brought into the 21st century. But does the pre-pandemic reluctance to embrace the virtual world presage a return to the prevalence of in-person approaches for conflict resolution? Is there something about the nature of labor-management relationships and the nature of their conflicts that will negate the efficiency advantages of virtual interactions?
So the central question is whether virtual practices will remain or go away once the pandemic is over. Certainly, the use of virtual forums will remain an option, and they will likely be used in one way or another. However, right now we just do not know how prevalent their use will be. I have heard some neutrals and practitioners say we will go back to at least 80% in-person and 20% virtual; others, however, say we will maintain a practice of 80% virtual and 20% in-person. Below I discuss what I believe are the benefits and downsides of virtual hearings, considerations for deciding whether to use an in-person or virtual approach and ways to make the most of virtual hearings.
Greatest Benefits of Handling Cases Virtually
Not having to travel produces efficiencies and economies in, for example, time taken for travel and costs for transportation, hotels, rental cars, etc. This may produce enough value to be an incentive to keep doing arbitrations and mediations virtually. Of course many airlines are in the passenger transportation business, so practitioners in this industry may express an innate preference for in-person hearings to address conflicts.
The use of virtual platforms gives everyone more flexible scheduling options. If you can avoid travel the day before and after a hearing, the parties and the arbitrator have more days open on their calendars to hold the hearing.
Also, if a case-in-chief or rebuttal witness is unavailable it is easier to schedule a virtual hearing at a future date than to arrange a date for everyone to meet in-person at a hearing site. Moreover, when a single necessary witness is unavailable for a hearing that is being scheduled and everyone else can make it, the parties could agree to take that witness’ testimony before the hearing and have it included in the hearing record.
Employees and managers are away from work for less time for a virtual hearing, so less loss occurs in terms of pay and productivity. For those not required to physically “sit” in the hearing room, they can be stationed in a breakout room where they can work unhindered until they are needed to testify.
Greater advanced planning for virtual hearings has become an accepted component of the process. It is a real benefit, because both sides tend to organize for a virtual arbitration a lot more than they did for in-person arbitrations. Sharing exhibits, identifying witnesses and addressing threshold issues in advance of the hearing helps the parties and the arbitrator hold a smoother running and more focused hearing. I even encourage the submission of opening statements prior to the hearing so I can become familiar with the issues. We may also discuss the use of joint demonstrative exhibits, for instance, to explain complex issues or lay out a timeline.
Pre-hearing planning meetings conducted virtually are also a plus. Better discussion occurs when the participants can “see” each other virtually, in contrast to the old style, pre-hearing telephone-only conferences. This is especially true for advocates and neutrals who do not know one another other and can “meet” online.
Parties should consider contract amendments or memorandums of understanding to specifically address the permissibility and procedural aspects of virtual hearings. While flexibility and adaptability to circumstances should be built into any process, some uniformity may be important to ensure consistency and due process.
Of course arbitration has a built-in level of surprise—indeed it has been called “litigation by ambush”—because no real discovery or motion practice exists. Unions often must depend on obtaining documents and information from management. At in-person hearings, management has access to documents and witnesses to a greater extent than unions. So when management is surprised by something, it can often obtain a document or witness on the fly to plug the hole in its case but it is harder for management to do so. For unions, therefore, virtual hearings may provide a more level playing field.
For a virtual hearing or mediation, the parties can pick neutrals from anywhere in the United States. No requirement exists to pick the neutral from the local region, because no one is going to travel.
The quality of the process and the neutral’s decisions are about the same in virtual and in-person approaches. However, extraneous arguments and posturing tend to be stripped from the process in virtual hearings. As a result, arbitrators get to the essence of things more easily.
Biggest Downsides of Virtual Hearings and Mediations
An all-day or multi-day virtual hearing or mediation has been shown to cause fatigue beyond what is experienced in in-person hearings. This “Zoom fatigue” results from the need to focus on faces on a small screen, the lack of normal movement, the absence of visual variety and the tendency to look at oneself on the screen.
While Zoom fatigue affects all participants, arbitrators, in particular, cannot gain as much information virtually about relationships, motives, and interest in settlement, as they can when the hearing is in-person. The neutral does not generally chat with the participants during breaks, is not present at the plant or office, nor the city or neighborhood of the work location. Such information is valuable; it can inform the neutral about the circumstances of the dispute. It may lead to a settlement, a narrowing of the issues or a sensitivity to some underlying conflict. It can enable the neutral to work better with the parties in the conduct of the hearing. Some information may be gleaned during the downtime of a virtual hearing when off the record, but more information is generally available at such times when the hearing is in-person.
A lot of people perceive an in-person hearing as important for the neutral. They believe the neutral needs to be physically face-to-face to really listen, to give due consideration and to be truly fair.
It may be harder in a virtual hearing for advocates to follow up on new information with documents and witnesses. This is mostly a problem for advocates, however, not for arbitrators who base decisions on the record, whatever it may be.
Gaps in the record are a concern, but again mainly a concern to the parties. Less communication between advocates and their clients may occur at a virtual hearing because they are not generally sitting next to each other and do not react in the same way.
It is probably more important for clients than counsel to have a feel for how the hearing is progressing. Counsels tend to know the arbitrators—or at least the arbitration process—but the clients often do not. How many times do clients ask their advocates how they think the hearing is going and ask their advocates to read the signs of how the arbitrator is reacting, even though neutrals try to keep a poker face?
Particularly for tripartite arbitration boards (i.e., airline system boards of adjustment and railroad public law boards), I think in-person interaction between the neutral chair and the partisan members is more open and free flowing than when the interaction occurs virtually. Maybe this has to do with a feeling of confidentiality and closer interaction when meeting in person.
Considerations for Deciding Which Approach to Use
Discussions about whether to use a virtual or in-person approach in arbitrations often focus on the arbitrator’s capacity to make credibility determinations, whether the grievant or parties feel they are being accorded due consideration, the complexity of the matter being heard and whether the hearing is likely to include settlement discussions. Whether to conduct a mediation virtually or in-person carriers with it unique considerations.
Can credibility determinations be made as well virtually as in-person? My view, along with that of most neutrals, is that neutrals decide cases on the evidentiary record and focus on factors such as consistency of the evidence, corroboration, coherence, common sense, probability, etc. Neutrals avoid evaluating credibility on demeanor; a person with a sweaty brow or nervous tics may actually be telling the truth. Neutrals like to think they base their credibility resolutions on substance not form. Thus arbitrators generally report no difference between in-person and virtual hearings in evaluating credibility.
People’s presumption that they have the ability to detect when witnesses are lying is a debunked theory, according to reliable studies. Nonetheless, part and parcel of witness examination is for advocates to follow up leads and to pursue hunches or impressions, especially on cross-examination. However, it may be challenging to pick up signals in a virtual hearing and harder to secure new witnesses to address those leads.
In-person hearings afford arbitrators greater opportunity to follow their instincts about who is telling the truth or who is not telling the truth. This may be an attractive trap, however, because the studies show that such impressions are faulty and subject to our biases and predilections. So, ironically, it may be better that arbitrators have less opportunity in a virtual hearing to use their instincts to evaluate whether someone is lying. On the other hand, those arbitrators just might base their credibility resolutions on a lousy video feed of a witness’ facial expressions. Moreover, for the duration of the pandemic at least, witnesses at in-person hearings are wearing masks. This makes it harder to even attempt to derive meaning from “reading faces.”
Some participants may not feel they are getting their full opportunity to present their case in a virtual setting. Grievants may think they are not receiving due consideration of their case given the artificial nature of an online hearing. In discipline cases, union advocates may not want to be second-guessed by grievants who may feel they have a better chance pleading their case in-person to the arbitrator. On the other hand, employee witnesses may be intimidated or uncomfortable testifying in-person against their supervisor or manager, perhaps less so virtually.
The same concern about in-person confrontations or intimidation may be present where an employee testifies against a fellow employee or others at work with whom they have a personal relationship. Also, it is easier to get passengers and customers to testify virtually than to have them travel to and attend an in-person hearing.
Complexity of the Matter
Many advocates believe that complex cases with large numbers of exhibits and witnesses can only be properly heard in-person. The back and forth of joining and clarifying issues between the parties may be diminished in virtual hearings where the parties tend to just want to get out their own case and call it a day. So the simpler the case, the more advocates feel comfortable with holding it virtually.
Advocates who must prepare with their clients virtually face real problems. For an advocate, being present at the company or union office to prepare for the case may be essential to finding the best documents and choosing the best witnesses. Preparing remotely can be a significant challenge.
On the other hand, a difference may exist between contract interpretation cases and discipline cases. In contract interpretation cases, the effort is to get to the essence of the often technical disagreement about contract language. There is less room for the human element—the stories, relationships and color commentary—of a discipline case. Thus contract cases may lend themselves to virtual hearings more than discipline cases. Still, contract interpretation cases may present their own subtleties, such as different versions of past practice, that make them challenging to address virtually.
Settlement Discussions and Mediations
Settlement efforts and mediations may achieve greater success with the appropriate use of in-person or virtual settings.
Settlement. An in-person forum affords personal interaction and may enhance the likelihood of successfully negotiating a settlement. It may be awkward for the neutral to take the parties into the hallway to discuss settlement, though there is more privacy when you do so in virtual hearings. However, some neutrals do not find this to be the case. In fact, they argue that the absence of in-person interaction may reduce tensions, personal confrontations and the need to save face by avoiding compromise.
Signals are harder to pick up in a virtual hearing. I find that the timing of inquiring about or initiating settlement talks is important and harder to judge in a virtual environment. Other arbitrators find it the same in both forums and feel just as comfortable speaking with counsel at the start or at any stage of the hearing.
Only in a small percentage of cases do the advocates come into a hearing anticipating that the case will settle. This may occur, for instance, where the arguments are overwhelming for one side or where the results of a case may really hurt both sides.
Some arbitrators who are less technology-savvy are reluctant to even move advocates to a breakout room to address settlement. I know one arbitrator who simply left his office to allow the parties to talk settlement because he did not know how to put them in a breakout room together.
Based on anecdotal information, my impression is that more settlements may have occurred during this pandemic period because of the parties’ aversion to virtual hearings. However, recent greater acceptance of virtual hearings and their efficiency may induce parties to choose a virtual hearing over a settlement they feel forced into because of their discomfort with virtual hearings.
Mediation. Mediation of collective bargaining disputes and grievances involves flexibility and an understanding of motives, interests and attitudes that may be elusive due to the rigidity of virtual meetings. It is much more important to “read the room” in mediation than in arbitration. Body language and “looks” are the subtle sauce essential in mediation.
Mediation is a much more fluid tap dance, especially in dealing with multiple issues and interests. Mediations are intrinsically challenging in terms of the trust, reciprocity and relationships that need to be established. This is especially true if there are several people or factions involved with different histories and relationships. Mediation is live action, whereas arbitration tends to be rehearsed and static.
It is hard to determine how to isolate certain groups of participants in mediation. I have found that a “spoiler” or “facilitator” often resides among the participants. If they can be identified they can be employed to positive effect when meeting in-person. In a virtual mediation it is much harder for the mediator to identify the key individuals or groupings of participants with whom to meet.
On the other hand, virtual hearings bring a serious focus to the task at hand. Much of the posturing in face-to-face bargaining is avoided, so these hearings can be more efficient. Nonetheless, some neutrals find virtual and in-person mediations pretty much the same.
Much downtime occurs in mediation, such as when a single party calls a caucus or when the neutral is excluded. Instead of sitting around, a lot of conversations can be done virtually and deeper discussions left for in-person meetings. Explanations of positions and discussion between the parties are best carried out in-person, while simple transactional exchanges may not necessitate an in-person meeting.
The Role of Good Will
While the pandemic initially made virtual hearings a necessary but not generally desirable substitute for in-person hearings, the parties at virtual hearings have shown some remarkable good will. The parties have been willing to deal with issues pre-hearing to make the hearing run efficiently, even if the collective bargaining agreement does not require it. In addition, the advocates have demonstrated self-restraint with respect to marginally worthy objections, the parties have stood ready to limit nonessential witnesses as well as to enter into stipulations and offers of proof. Whether this good will continue in subsequent hearings once the pandemic has subsided remains to be seen.
Long-Term Prospects for Virtual Processes
Are virtual hearings or mediations here to stay? Some people think that after COVID-19 is under control, we will return to in-person hearings all the time. They argue that the only reason we are doing virtual hearings and mediations now is because no other choice exists to ensure people’s health and safety. When a choice is available, an in-person hearing will be the forum of choice. Others think the benefits of virtual hearings are so great that they will be the dominant mode in the future.
Most observers think practitioners will use a mixed or hybrid hearing approach. Combining virtual with in-person hearings provides flexibility to participants. Hybrid hearings are a way to accommodate both sides where one side wants a virtual hearing and the other an in-person hearing. However, a hybrid hearing may have the appearance of unfairness, especially if the arbitrator is present in-person and informally chatting with participants in the room while those online are left out of these conversations.
A lot of my cases are being booked to be held virtually—by choice of the parties—saving money and increasing convenience. But the parties are reserving the option of hearing the case in-person if the pandemic lets up and the participants feel safe. In one instance I think it may be important to have an in-person hearing: if one of the parties is a really difficult grievant who requires union supervision and guidance, dealing with such a person in a virtual environment would be extremely hard.
Pre-hearing planning and addressing preliminary issues (e.g., arbitrability, witnesses, exhibits, stipulations and settlement) is likely to continue. Threshold issues often take up to half a day at an in-person hearing. Planning will help ensure the hearing does not have to be extended with all the related time and financial costs. There seems to be universal endorsement of these virtual pre-hearing planning efforts.
I think more contract interpretation cases will be done remotely, if they are relatively uncomplicated. More cases involving lesser discipline, like suspensions, will be conducted virtually. However the parties may be reluctant to conduct discharges remotely absent the grievant’s approval.
In the past, when one party or the other asks for an absent witness to be able to testify by telephone or video at a later date, the other party might object especially if it is an important witness or credibility is involved. My guess is that in the future the witness will testify virtually without any real contention, because this approach has become so accepted. Similarly, if even one of the advocates is unable to attend in person but asks that the hearing proceed nonetheless, there is likely to be greater acceptance of the approach.
Regarding mediation, the parties may get together in-person for a block of time, especially at the beginning and end of the mediation. But intermittent conversations and transactions on discrete issues will become more common virtually.
Overall, the ease of virtual processes and the parties’ comfort with these processes will lead to greater use. To what degree this occurs is still an open question.
In this episode of the Arbitration Conversation Amy interviews Mirèze Philippe, Special Counsel at the International Court of Arbitration, International Chamber of Commerce, on gender diversity in arbitration. https://youtu.be/6URk_FvjHX0By Mirèze Philippe, Amy Schmitz
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