Technology: Neutrals and Facebook—the dangers of social media

One case demonstrates how neutrals will have to consider how much they want to participate in social media

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.

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.

Contributing Author

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Dennis Sweeney

Hon. Dennis M. Sweeney (Ret.) served as a Maryland Circuit Court judge for nearly 20 years before joining JAMS, a private alternative dispute resolution provider. He...

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