Is An In-Person Hearing Ever Necessary?
Revisiting Video Hearing Protocols
As soon as the COVID-19 emergency declarations issued on March 13, 2020, my arbitration cases for the foreseeable future were thrown into uncertainty. Initially, the parties wanted to reschedule within a month or two, but it soon became clear that we wouldn’t be seeing each other in person for a while. Not only were we unable to reschedule cases, parties stopped selecting arbitrators, unsure how to process grievances without the preliminary in-person step meetings required by their CBAs.
That month, the National Academy of Arbitrators, along with FMCS and AAA, convened a Video Hearing Task Force and began to train arbitrators how to conduct video arbitration hearings. On April 1, 2020, the NAA Committee on Professional Responsibilities and Grievances (CPRG) issued Advisory Opinion 26, addressing how an arbitrator should proceed if one party refused to do video hearings1. Individual arbitrators developed video hearing protocols, and arbitrators who were less tech-savvy hired court reporters and novice arbitrators who had greater facility with the process. By May 2020, most arbitrators had resumed scheduling and hearing cases.
It’s not an exaggeration to say that video hearings saved labor arbitration and the careers of many arbitrators. Video conference technology enabled collective bargaining and grievance meetings to happen, and were a critical factor in facilitating labor relations during the pandemic lockdown and through its economic impact.
At the NAA meeting in Marina Del Rey in September 2021, there was eagerness among advocates, particularly union advocates, to have labor arbitration return to in-person hearings. Many arbitrators were hesitant to have in-person hearings, not only because of their convenience, but also because there was a feeling that we hadn’t quite moved past the danger. Soon after, there was another wave of infections. In 2021, there were 463,237 deaths from COVID. While younger advocates may have felt that vaccination was an acceptable solution to this problem, many (predominantly older) arbitrators felt that the risk still outweighed the reward.
As the infections waned, different arbitrators took different approaches to video hearings. Some returned in-person, others left panels that required them to do so. Most arbitrators do a hybrid approach. Personally, I decided to stop traveling for in-person hearings. I will do in-person hearings in most of Northern California but require video hearings outside of my region. This is based more on personal preference and climate concerns related to unnecessary travel than fear of COVID.
Nearly five years after the start of COVID, my impression from advocates is that there is a desire among many unions, and a few employers, to return completely to in-person hearings. I am hearing more frequently from my colleagues that they are needing to invoke Opinion 26 to resolve disputes or are inviting parties to select a different arbitrator if the parties won’t accede to the arbitrator’s wish to do a video hearing. Both arbitrators and advocates feel justified in their request and I fear there’s a growing frustration about the use of the technology.
I thought that it would be a good time to revisit the question of whether video hearings can replace in-person hearings and see whether there are compelling reasons to use one or the other in particular instances.
When In-Person Hearings are Best
I do think there are instances when an in-person hearing will more productive and valuable to the parties than a video hearing. For example, when the parties need an opportunity for their leadership/decision makers to confer with one another informally, being in-person is a far better venue for facilitating difficult and confidential discussions.
Similarly, when what the parties really need is mediation, I believe being present in the same place is more productive. I’ve conducted video mediation where one party was easily distracted or even just dropped off the call. There’s no way to use certain mediation tactics if a party can easily disengage.
Some cases do require site visits, so that the arbitrator and the parties can view in-person evidence that cannot be transported or shown on video. I did have a case concerning automation of certain tasks and seeing how the equipment operating was relevant to decision. A video might have been instructive, but in person allowed the advocates and me to ask lots of questions.
From the union’s perspective, an in-person hearing is valuable for organizing purposes, i.e., when they need to demonstrate something for their members. Unions may use hearings to train stewards, show bargaining unit cohesion, or support for a grievant. These factors may not outweigh factors favoring a video hearing, but they are a strong motivation for some unions in some cases.
When Video Hearings are Best
There are plenty of times, however, when a video hearing is not only preferred by one or both parties, but when it is actually the better option under the circumstances. For example, in cases where there are a lot of witnesses, especially when it’s difficult to get release time for everyone or get all the witnesses and advocates in the same place at the same time.
I have found video hearings to be preferable when a witness is uncomfortable in a legal setting, which is often the case for frontline workers. While the lawyers, managers, and union reps may be perfectly comfortable in the adversarial setting, bargaining unit members rarely are. They associate legal proceedings with the most troubling times in a person’s life: divorce, criminal matters, deportation hearings, to name a few. They simply do not want to be in a legal proceeding, either consciously or unconsciously, and appearing by video dramatically reduces their anxiety and improves their testimony.
Video hearings are much less expensive. Because arbitration is a process that is intended to be inexpensive and expeditious, avoiding travel expenses is an important consideration. In one case, legal counsel for an employer was based in New York, and argued that their client shouldn’t have to pay travel fees for a short and straightforward case. The union argues that the employer should choose local counsel if they wanted to avoid paying travel costs. But just as the employer doesn’t get to choose their employees’ representative, neither does the union get to choose management’s. When avoiding unnecessary expenses is an important consideration, video hearings are superior.
When a case is scheduled for multiple days of hearing, video is much better. It’s easier to schedule an arbitrator and all the participants; to get witnesses to appear; and to keep track of documents. Multiple day in-person hearings tend to wander too much, and if additional days are needed, they are very difficult to schedule.
Another important consideration is the one that launched the popularity of video hearings in the first place. COVID is still an epidemic, and while it has lost the ferocity of the earlier years, more than 800 people die every week from the COVID. A far greater number of people are immune-compromised from other causes or otherwise need an accommodation to participate. It’s unfortunate that people must disclose either a medical condition to obtain the “accommodation” of a video hearing. The default should be considering accessibility first.
When It Doesn’t Matter
Finally, there are parties that argue that in-person hearings are necessary when they are not in fact necessary. Arbitrators do not need to see a witness in person to judge the witness’s credibility. Arbitrators rarely rely on demeanor such as posture, tics, or other physical attributes to determine credibility. We weigh the witness’s testimony against the totality of the evidence to determine if their story is the more credible one, and not on (baseless) body language cues.
In cases where there are non-English speaking participants, appearing in-person with a translator is not the better course of action per se. Video conference technology has advanced to a point where multiple translation channels can be used, and qualified interpreters are becoming adept at assisting the parties with ensuring language access. Meanwhile, in-person interpreters can be distracting for the witnesses and arbitrator and the in-person colloquy can cause delay. It’s not a huge issue but it certainly isn’t better than video hearing interpreter services.
Some parties, particularly unions, argue that in-person hearings are a past practice that must be observed. The past five years have essentially erased in-person hearings as a past practice, so absent specific CBA language requiring it, few arbitrators would agree that the same circumstances exist now as they did in January 2020. COVID changed workplaces, video hearing technology changed work processes. The parties should bargain CBA language that reflects the needs of the parties to maximize dispute resolution.
Conclusion
Obviously, there are some circumstances when in-person hearing is necessary or preferable. If you are going to advocate for or against in-person hearing, the parties should identify the factors that weigh in their favor and be prepared to consider the position of the opposing side, just as the arbitrator will.
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I re-read Advisory Opinion 26 to write this column and it’s interesting to see how much it reflects the specific concerns related to the pandemic, some of which don’t apply as imperatively now. This AO might get revisited in the future, and I hope that this column assists in its consideration.
Excellent and thorough.