VIDEO ARBITRATION:

A GUIDE FOR LABOR 

AND MANAGEMENT 

ADVOCATES
 2

Introduction

This Guide provides an overview for labor 

and management advocates who may be 

considering the use of video for arbitration 

hearings. It explores potential advantages 

and disadvantages, provides preparation 

tips, highlights certain technical issues, and 

lists some available video platforms and 

general features. In addition, the Guide 

provides links to some excellent resources 

that were among those drawn upon in the 

preparation of these materials, and that we 

recommend to those interested in examining the video option in greater depth. 

Where these materials are directly quoted 

or paraphrased, a reference to the source is 

shown by the number in [brackets] corresponding to its number on the reference 

list that appears at the end of the Guide. 

Even before the outbreak of the coronavirus (COVID-19), FMCS was exploring 

ways to facilitate the use of video arbitration in appropriate cases for parties who 

might find it appealing. While the Agency 

takes no position on whether video arbitration should be used in any given case, it appeared to us that interest in video labor arbitration was increasing and there was 

mounting evidence of many potential advantages. Quite a few labor arbitrators had 

reported the successful use of video to 

conduct entire hearings and/or to take testimony from one or more witnesses. Since 

the onset of the pandemic, FMCS has 

placed a high priority on supporting those 

among our customers who determine that 

video arbitration may prove beneficial. 

Videoconferencing in 

Hearings and Mediation

There is broad and meaningful experience 

in the conduct of hearings by video outside the context of labor arbitration. A 

growing number of courts across the 

country are using video for the conduct of 

hearings in a wide variety of contexts, including arraignment hearings, emergency 

hearings, receiving testimony from remote 

witnesses, and appellate hearings, among 

others. Video is increasingly being used for 

the conduct of hearings by federal and 

state administrative agencies [1]. The Social 

Security Administration, “probably the 

largest adjudicative agency in the western 

world” according to the Supreme Court 

(Barnhart v. Thomas, 540 U.S. 20, 28 (2003)), 

conducts many tens of thousands of disability hearings by video every year. Video 

also is widely used in other arbitration contexts, such as in international commercial 

arbitration and in arbitrations under the 

auspices of the Financial Industry Regulatory Authority (FINRA) [2]. 
 3

Since a state of emergency was declared 

with the outbreak of the COVID-19 

pandemic, FMCS has successfully conducted an increasing number of mediations of labor-management negotiations 

and disputes. Mediators and parties have 

reported positive experiences with the use 

of video. Indeed, video arbitration and 

mediation may be seen in the broader context of the growing use of online dispute 

resolution, often referred to as “ODR” in 

the context of conflict management. 

Requesting a Video 

Arbitration Panel 

To facilitate the use of video arbitration by 

parties who desire it, FMCS has added a 

feature to its online arbitration request system (also available “manually”): parties 

may check a box to receive a panel consisting only of arbitrators who have selfcertified as ready and able to conduct video arbitration. This choice is available 

along with other special requirements for 

arbitrators that the parties may agree on, 

such as being an attorney or a member of 

the NAA. Below is a screenshot showing 

approximately where to find this request 

selection in our online request system.

Remember that parties, even in a case 

where a video-ready panel had not been 

requested, may agree to request the arbitrator to hold the hearing by video. If the 

arbitrator originally selected is not comfortable with the video option, FMCS can 

provide a new panel to the parties consisting of only of arbitrators who have indicated they are video-capable and/or appoint such an arbitrator as a replacement. 

Working with the 

National Academy of 

Arbitrators 

FMCS has also collaborated with the 

National Academy of 

Arbitrators in hosting 

a webinar for arbitrators on the use of video arbitration and in 

reviewing and drawing attention to materials developed by the Academy for the benefit of arbitrators wishing to offer video

arbitration services. Parts of these materials may also be very helpful to advocates, 

and they are listed among the resources 

provided at the end of this Guide. 

Webinars

From time to time, to 

the extent parties may 

express interest, FMCS 

will offer webinars for 

advocates who desire 

further guidance in the use of 

video arbitration. 
 4

Potential Advantages +

Those experienced in video arbitration and 

those who have conducted research, have 

identified multiple potential advantages. 

These include:

• Social Distancing During a pandemic, 

this is the most obvious benefit. The 

conduct of a video hearing need not 

require any in-person contact.

• Cost savings It has long been widely 

accepted that the use of videoconferencing offers major financial benefits 

[1]. Foremost among these is the savings on travel expenses. This includes 

arbitrator invoicing for both travel time 

and costs (for hearings and cancellations), as well as that of advocates and 

both expert and lay witnesses. “It seems 

clear that the cost of traveling to the 

arbitration site is increasing with little 

indication that those costs will reduce in 

the future.”[2]

• Greater Convenience Video arbitration affords greater scheduling flexibility and the ability to accommodate 

those otherwise unable to participate in 

a hearing. In a country of great mobility, where corporations, unions, and other institutional parties, as well as law 

firms, often have widely dispersed 

worksites, offices, and employees, and 

where many of the disputes themselves 

may involve more than one location, 

the ability for parties, advocates, experts, and court reporters to fully participate in arbitration proceedings in 

real time from remote locations may 

confer advantages on participants from 

a convenience perspective in addition to 

lowering costs. Time constraints resulting from different time zones and travel 

issues such as flight times are considerably relaxed.

• Speed Because of the efficiencies 

obtained in such aspects as scheduling 

and travel along with reduction in logistical complexity and advocate down 

time, the timespan for hearing and disposition may be considerably reduced 

in many cases.

• Improved Advocacy Gains in cost, 

convenience, and efficiency may also 

make it possible for parties to better 

match advocates with cases that fit with 

their experience and expertise.

• Greater Civility In general, civility is 

something parties should aspire to in 

every case; in a time of crisis such as we 

are experiencing with the pandemic, it is 

especially important to maintain mutual 

respect and be sensitive to what others

✓ Before looking at video arbitration in further detail, the most important 

takeaway from what follows is that advocates should treat a video hearing, in 

most ways, as closely as possible to the way they would an in-person hearing, but prepare themselves and their witnesses for the special 

features, requirements, and hurdles of videoconferencing. 
 5

may be going through. There is at least 

some evidence that “videoconferencing 

sometimes forces civility on all the participants in a hearing.” This may be due 

in large measure to the frequency of 

even slight audio delays inherent in 

videoconferencing, causing participants 

to “be particularly polite and cognizant 

that they may be interrupting.”[1]

• Improved Access to Interpreters 

and Court Reporters In many cases, 

when there are one or more witnesses 

for whom English is a second language, 

a foreign language interpreter may be 

required; sign language interpretation is 

also necessary in some cases. There is 

far greater ease of access to interpreters online than in any given physical 

location, especially one that is not near 

a major urban area. Access to court 

reporters can also be facilitated with 

online platforms.

• Witnesses May Feel More at Ease in 

Their Own Surroundings While 

witnesses often feel anxious and uncomfortable when they must travel and 

attend an arbitration hearing in a new 

setting, being able to testify in the comfort of their own home or other familiar location may allow for clearer and 

less agitated testimony.

Potential Disadvantages -

There are downsides to video arbitration 

that should not be overlooked. These 

include:

• More Difficult Credibility 

Determinations Perhaps the most frequently heard reason for pushback on 

video hearings is that the arbitrator’s 

ability to properly assess witness credibility via videoconferencing is diminished because observing demeanor in 

person is a key part of determining the 

truthfulness of testimony. There is, 

however, substantial debate on this 

point. Many studies suggest that with 

the right technology these days, video 

testimony may give nearly as much 

chance for the arbitrator to carefully 

observe demeanor [1]. The NLRB has 

found that a witness’s “testimony by 

video may be evaluated on an equal 

footing with the testimony of witnesses 

appearing in person at the hearing” and 

the DC Court of Appeal affirmed that 

finding. (EF International Language 

Schools, Inc. and Andrea Jesse, 201 

L.R.R.M. (BNA) September 15, 2014, 

affirmed in EF International Language 

Schools, Inc. v. NLRB, 673 Fed. Appx. 

1 (DC Cir. 2017)). And that is not the 

only counterargument: demeanor is 

notoriously unreliable as a test of 
 6

Potential Disadvantages cont’d

credibility. “There is a growing body of 

empirical research to support the proposition that ‘the long-standing confidence in the principle of demeanor evidence is unfounded.”’[2] Meanwhile, 

an extensive study of the Social Security 

Administration disability hearings by 

the Chicago-Kent College of Law 

found only a very small difference in 

outcomes between video and in-person 

hearings. (Harold Krent and Scott 

Morris, Achieving Greater Consistency in 

Social Security Disability Adjudication: An 

Empirical Study and Suggested Reforms

2013). It will be up to each party to determine whether having witnesses testify by video will be a detriment in any 

specific case.

• Technical Frustrations, Glitches, 

and Breakdowns There are a variety 

of potential technical problems that 

should be considered before deciding 

whether to participate in video arbitration. Further along in this Guide is a 

discussion of ways to overcome these 

difficulties, but it is important to be 

aware of them. Problems frequently 

mentioned include:

 Frustration with Technology in 

General There is no hiding the fact 

that many people, particularly among 

those who did not grow up with the 

internet in their pockets, have trouble 

dealing with applications they have 

not previously used. A lack of familiarity can create anxiety that can in 

turn generate more difficulties. This 

may be a problem for some advocates, 

but even when it is not, witnesses 

must be considered.

 Network, Hardware, and 

Software Glitches Stuff happens 

with technology. Network connections can be disrupted; computer 

hardware such as the webcam and microphone can stop working; power 

outages sometimes happen; and 

glitches in software can occur, especially working over the web.

 Complete Technology Breakdown 

The possibility of a major technical 

failure that will completely stop a 

hearing or prevent it from starting 

cannot be overlooked.

 Problems Inherent in 

Videoconferencing There is no 

way to prevent some degree of sound 

or video delay, and difficulty hearing a 

participant can occur at any point in 

the process.
 7

• Privacy/Security concerns 

Videoconferencing platforms are all 

subject to potential security vulnerabilities. The pandemic has brought 

examples of such concerns to light. 

The vulnerabilities are shared well 

beyond the arbitration community: 

myriad video meetings are conducted 

by corporate boardrooms, bankers 

and exchanges, law firms, and courts. 

Video platform providers cannot afford the damage to their reputation if 

security violations become a significant risk; they must address these issues and it appears they are racing to 

do so. In any event, parties should 

also be aware of the potential for actual participants in arbitration to misuse the video. There are ways of minimizing risk that will be addressed later in this Guide; however, nothing is 

foolproof. A good overview of security in videoconferencing is offered in 

an article in the ABA Journal ( Nicole 

Black, It’s Now a Trekkie World: Top 

Videoconferencing Tools for Lawyers, July 

26, 2019) available on the web at 

https://tinyurl.com/udevyzj.

Other Considerations

There are additional factors to think 

about; ones that may not be viewed as 

pros or cons but may make a difference 

as to whether and how to select arbitration by video. These include:

• Who Will Provide the Video 

Platform? After deciding to use videoconferencing in arbitration, the

first determination is whether the 

arbitrator or one of the parties will 

provide the platform. The National 

Academy of Arbitrators notes that 

“most large entities, including law 

firms, have sophisticated technologies and tech support in house.” The 

Academy recommends to arbitrators 

that such technologies offered by one 

of the parties should be the “first 

recourse when circumstances dictate 

the use of videoconferencing procedures.”[3a] Of course, if one of the 

parties is to provide the platform, the 

other party would have to agree on it 

and arrangements would need to be 

made for the arbitrator to access and 

manage the meeting. FMCS arbitrators offering video arbitration should 

all have a platform they can offer for 

the hearing if neither party can make 

one available. Whatever platform is 

used, of course, it is completely up to 

the arbitrator to manage the hearing 

just as would be the case in a proceeding held in-person. 

• A Wider Net for Arbitrators 

When seeking a panel of videocapable arbitrators, parties do not 

necessarily have to be limited by the 

same geographical constraints as they 

normally would: an arbitrator can 

hold a video hearing from anywhere 
 8

Other Considerations cont’d 

in the country. In some cases, parties desire arbitrators in closer proximity to increase the chances that they will “know” 

those on the panel. However, because far 

from all arbitrators offer the video option, if restrictions are too tight there may 

not be a full panel available. For example, 

a request for video-capable arbitrators 

who are also attorneys and within a 125-

mile radius of a dispute location (one 

type of “metropolitan” request), there 

may be only four arbitrators who meet 

those criteria. Parties who seek video 

arbitration might consider casting a wider 

geographical net.

• Use in Discipline vs. Contract 

Interpretation Cases There are those 

who suggest that video arbitration is especially appropriate in contract cases 

since they tend to focus less on witness 

testimony and credibility determinations. 

However, consider (1) that some contract cases do involve a fair amount of 

witness testimony and (2) the discussion 

of testimony and demeanor under 

“Disadvantages” (above). Many discipline or discharge cases may be appropriate for hearing via videoconference.

• Transcripts The use of video for arbitration easily allows for a court reporter 

who is not physically present at the hearing. The reporter can see and hear the 

proceedings; in some cases, a reporter 

can provide a transcript in real time. In 

addition, some video platforms can provide automated transcripts of a hearing 

without need for a court reporter. These 

may not, however, be as reliable as a 

transcript prepared by a professional 

court reporter and may involve less 

secure cloud recording.

• Document Handling There are many 

factors to consider when it comes to the 

use of documents/exhibits [3b].

 Simplify the Arbitrator’s Work 

Advocates are well advised to make the 

arbitrator’s job as easy as possible and 

maximize efficient use of exhibits.

 Variety of Document Applications 

There are different platforms for document handling and this will be up to 

the arbitrator if the parties have not 

provided him/her with the platform of 

their choice; email is a possibility if 

document files are not too large; other 
 9

options include Dropbox, Google 

Drive, and Microsoft products, among 

others. 

 Joint Exhibits Ideally, the parties 

should agree on a set of joint exhibits 

that can be shared with arbitrators 

prior to the hearing.

 Sharing Exhibits If unable to agree 

to present documents as joint exhibits, 

the parties should discuss the remaining exhibits and be prepared to share 

them with opposing advocates and 

the arbitrator. Preferably, the parties 

will share exhibits pending admission 

into the record (with password protection if desired). 

 Exhibits for Witnesses If witnesses 

will not be with the advocates, arrangements should be made to get exhibits to them and let them know how 

they will view the exhibits during the 

hearing. 

 Number of Exhibits To the extent 

possible, it is recommended that the 

parties minimize the number of exhibits that will not be exchanged until 

the hearing day.

 Saving and Labelling Exhibits 

Each exhibit should be saved in a separate electronic file and identified as it

would be on the record (e.g., “Joint 

Exhibit 1- collective bargaining agreement”) or all in one searchable file 

with bookmarks.

 Exhibit List The arbitrator may 

request a comprehensive exhibit list 

and, in any event, it is good practice 

to provide it if possible.

 Introducing Exhibits During the 

hearing, it may be possible to introduce exhibits formally through a 

screen share function on the video 

platform or through email. Exhibits 

not planned for may also be exchanged in one of these ways.

• Witness Preparation and Handling 

There are various aspects of video 

hearings that should be considered 

when preparing and handling witnesses. 

It is important that witnesses have access to a solid internet connection and 

gain some familiarity with the video 

platform and what to expect. Because 

of potential time lag, witnesses should 

also be instructed to pause for a few 

seconds before answering a question 

and to stop answering when an objection is made until 

the arbitrator has 

ruled. More information on witness 

preparation is provided below under 

the heading 

“Dealing with 

Technical Issues.” 

Witnesses should 

also be instructed as to what to do if 

they lose connection to the video 

platform.

Be Prepared for Surprises!
 10

Other Considerations cont’d

• No Cheating A video environment 

should not be used to give an advantage 

to a witness that would not be available 

during a live hearing. “Remote witnesses 

are subject to the same limitations as 

live witnesses in the hearing room. They 

may not consult with anyone during testimony, and they may not consult documents that are not in the record, or 

about which they are not being questioned... The parties must agree to advise their witnesses of these limitations...”[3a] Expect the arbitrator to 

ask the witness to confirm that there is 

no one else present in the room, and 

that they are not consulting any documents without the knowledge of the 

arbitrator and advocates for both sides. 

Dealing with Technical 

Issues

• Selecting and/or Deciding to 

Approve a Videoconferencing 

Platform FMCS does not endorse or 

recommend any specific platform. 

There are quite a few of them that have 

potential use for a video hearing, and 

they all have pros and cons. An important consideration is whether, and to 

what extent, a platform allows for proceedings that are substantially similar to 

a normal hearing. Also, during the oversized demand being experienced by all 

such platforms during the pandemic, it 

is crucial to get the most up-to-date information on any service interruptions 

or security issues that have surfaced 

with any platform under consideration. 

Below, in alphabetical order, are some 

of the videoconferencing platforms in 

widest use along with links to the website of each. Bear in mind that these are 

not the only platforms that exist. Moreover, some institutions will have their

own customized platforms. There are 

also highly sophisticated, purposedesigned hearing platforms not listed 

below, though these tend to be very 

expensive. 

 Cisco Webex Meetings https://

www.webex.com/

 Google G Suite Hangouts Meet

https://gsuite.google.com/products/

meet/

 GoToMeeting https://

www.gotomeeting.com/

 Intermedia AnyMeeting https://

www.intermedia.net/anymeetingvideo-conferencing

 Microsoft Teams (replaces Skype for 

Business Online as Microsoft’s videoconferencing platform for business) 

https://products.office.com/en-us/

microsoft-teams/online-meetingsolutions

 RingCentral Meetings https://

www.ringcentral.com/onlinemeetings/overview.html

 StartMeeting www.startmeeting.com

 Zoom Meetings https://zoom.us/

meetings

• Getting Assistance If you have trouble becoming familiar with a video platform or need technical assistance, you 

always have options. Most videoconfer-
 11

encing applications have online tutorials 

and help menus; some even have detailed training on video. By using a 

search engine such as Google, you 

should be able to find detailed guides 

and even YouTube videos by private 

individuals very experienced with a platform; these can provide tips and, in 

some cases, walk you through everything you need, step-by-step. You 

should also not hesitate to get direct 

help from a live assistant who is 

“native” to web-based technology, even 

from a family member or friend. 

• Make Sure You/Witnesses have a 

Good Internet Connection In theory, 

video conference calls can take place 

over any internet connection. However, 

for reasonable quality, a stronger internet connection is needed; 2Mbps 

(Megabits per second) upload and 

download bandwidth is a good minimum benchmark but check on the requirements of the platform to be used. 

Be aware that what a carrier offers as 

the speed capability is not necessarily 

what one gets. The strength of any 

internet connection can be tested; one 

easy test is available by going to 

https://www.speedtest.net/. Broadband internet is the best choice if available. Wi-fi or ethernet connections are

both fine, provided the speeds are high 

enough and not being split between too 

many other devices. If wi-fi is being 

used, it is best to avoid a public connection as it is not as reliable; it also creates 

greater privacy risks. Cell phones may 

work for videoconferencing, but they 

tend to be less consistent than broadband internet. Any witnesses planning 

to use cell phone data for the transmission should be instructed to stay in an 

area with a strong 4G, LTE, or 5G signal and ensure they have enough data 

to last the entire call.

• Audio and Video out of Sync Audio 

and video have slightly different transit 

times through intermediate routers, and 

this can lead to the loss of synchronization between moving lips and the sound 

you hear (known as “latency” or “lag”). 

A small amount of latency is to be 

expected in any videoconference, and it 

may barely be noticeable. However, 

only a small amount of lag can result in 

two people inadvertently talking over 

one another at the same time. Everyone 

should be reminded to pause longer 

than usual before speaking after someone else has finished speaking. 

• Minimizing Security Risks While it is 

impossible to guarantee security/

privacy online, if the arbitrator and the 

parties take appropriate steps, it should 

be possible to keep risk relatively low in
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Dealing with Technical Issues cont’d

most circumstances. All participants 

should check the web for the latest information on any security issues with 

the platform to be used; advocates 

should weigh any risk against the relative benefits. Security/privacy is primarily up to the host. All should make sure

that they are using the latest version of 

whatever video platform has been selected. The arbitrator should have the 

ability to govern who can enter the 

meeting. The host should: provide each 

participant with unique meeting ID 

links, use meeting passwords to the extent possible and, if the platform has a 

“waiting room” type feature, vet the list 

of people in the waiting room to make 

sure no unexpected participants are in. 

• Equipment Make sure in advance that 

you and your witnesses have a working 

webcam, microphone and speakers in, 

or attached to, your computer or other 

device. Advocates may want to consider 

purchasing a separate webcam, headphones and microphone for better 

sound and visual quality. Even before 

testing a videoconferencing platform, it 

is easy to check your equipment and see 

and hear what comes out by using any 

of a dozen or more free online tests 

that do not require signing up for anything. (Simply google “test webcam” or 

“test microphone” to find these tests). 

Keep in mind that wired equipment 

tends to be more reliable than 

Bluetooth.

• Audio Choice Some platforms will 

offer participants a choice between 

getting the audio feed through the computer or getting it by calling in on the 

telephone. If you or your witnesses decide to use the telephone for the audio 

portion, a landline is always preferable 

to a cellular connection. The constant 

refrain of “can you hear me now?” is 

not desirable. 

• Special Features Each platform has its 

own special features that the arbitrator 

and parties may or may not wish to use. 

These may include:

 Screen Share Many video platforms 

provide for the ability of participants 

to share their screen; this can be used, 

as mentioned earlier, to introduce exhibits or share them with witnesses. If 

there is a selection available to share 

only the document on the screen and 

not the entire actual screen, that is 

best. Otherwise, remember that notifications, pop-ups, and emails may appear on your screen, becoming visible 

to all.

Can you hear me now?
 13

 “Breakout Rooms” Breakout Rooms 

are useful for any time when certain 

participants want to be able to discuss 

something without others listening in 

(for example, the advocates with their 

respective clients, or the arbitrator in a 

sidebar with just the advocates). Note 

that if this feature is not available, it 

should be possible to use a separate 

channel for private communications 

such as cell phone or by setting up a 

separate video call.

 “Waiting Rooms” These can be used 

so that participants know they are 

connected properly but that they are 

not yet needed in the “hearing room.” 

The feature can be used to sequester 

witnesses, for example.

 Recordings and Transcripts Most 

of the platforms allow for the host to 

record the hearing; some even provide 

automated transcripts, although note 

the earlier cautions about it. Each participant should know in advance if 

they are being recorded, and there 

should be an agreement on whether 

an automated transcript is to be used 

as an official transcript of the hearing.

➔ Test, Test, Test—Practice, Practice, 

Practice It is impossible to overstate 

the importance of ensuring that (1) 

everyone is familiar and reasonably 

comfortable with the technology to be 

used and (2) everything is working as 

expected. “Don’t assume that it will 

work with everyone every time. Assume 

that it won’t work. There are issues with 

multiple devices, operating systems, 

apps, and especially network capacity 

that can affect how things work.”[4]

Among the steps we recommend:

 A thorough review of the video 

platform with all witnesses, providing or referring them to step-by-step 

instructions and preparing them for 

what is unique to a video hearing in 

addition to any other witness preparation you would normally do.

 A complete check of connections 

for each location where you and your 

witnesses will appear. Run tests in advance to ensure that the signal is 

strong enough to provide for uninterrupted service from all computers 

and other devices to be used.

 Run tests on the actual platform 

with each participant before the hearing day so that everyone is familiar 

with how the platform works and to 

check that equipment (webcam, microphone, speakers) are functioning 

properly. This is also a good time to 

test lighting and other environmental 

factors and to test functions of the 

platform from muting to special features. 

 Encourage practice with the 

platform: colleagues, family and 

friends can also be used for practice 

and double-checking on sound and 

video quality.
 14

Other Preparation Tips

• Professionalism Remember to treat 

the video proceedings as you would an 

in-person hearing and maintain as much 

professionalism as always if not even to 

a greater degree. This includes being 

prompt and respectful. If something 

goes wrong, reach out to your adversary 

and the arbitrator promptly.

• Dress Attire for you and the witnesses 

should be no different than for an inperson hearing, except it is a good idea 

to emphasize solid colors and avoid patterns.

• Camera Remind witnesses to look directly at the webcam, not 

the screen; it is best to 

position the webcam at 

least at eye level or 

slightly above, with 

everyone centering 

themselves and avoiding 

awkward angles. This is 

something to be practiced. Everyone should also remember 

that they may be on camera even when 

they are not speaking and that every 

gesture and facial expression may be 

directly observed.

• Microphone Most video platforms will 

have a “mute” button. It is best to have 

your microphone muted when you are 

not speaking; any background noise, 

including taking notes on your laptop or 

rifling through papers, will be picked 

up. If you are on mute while the advocate for the other side is questioning a 

witness, make sure you identify, and 

have your finger on, the “unmute” trigger, in case you want to interpose an 

objection.

• Surroundings/background It is always critical for all to be aware of their 

surroundings, fully appreciating what, 

besides each person, will appear on the 

camera. You should test and check for 

each of these elements with all your 

witnesses: 

 Setting A neutral, hearing-appropriate 

solid background without distracting 

objects tends to be best, though use 

your best judgment as to what will 

cast each of your witnesses in the 

best light. 

 Virtual Background Some platforms 

allow for a “green screen” effect to 

create a virtual background that replaces the entire scene behind the person speaking. If you decide to use 

one, make sure to test it well in advance. The visual effects can often be 

very distracting or annoying, especially if the individual speaking does not 

have an actual, purpose-made green 

screen right behind his/her chair.

 Lighting Natural, overhead, or side 

lighting is usually best—the key is getting light directly on your face without 

blinding the camera. Avoid backlighting as much as possible, as it tends to 

cast shadows. 
 15

 Background Noise It is important 

to appear for 

arbitration 

proceedings 

from as quiet 

a setting as 

possible. Anticipate interruptions from 

dogs, children, 

household appliances, and elsewhere; 

find the best spot to avoid interruptions. If you or a witness anticipates 

disruption, it is appropriate to advise 

the arbitrator up front. 

• Breaks As in any in-person hearing, 

people will need to take breaks. The 

arbitrator will be calling breaks and you 

should not hesitate to ask for one when 

necessary and appropriate. 

Conclusion

FMCS expects video arbitration will prove 

to be a very beneficial alternative in many 

kinds of cases. The choice of whether to 

use video arbitration in each instance is, of 

course, up to the advocates and the arbitrator. FMCS is not recommending the use of 

video in any specific case and cannot (and 

would not) require an arbitrator to use it or 

refrain from doing so (absent agreement 

of the parties). Our Agency does encourage parties to become aware of the possibilities and consider the pros and cons 

based on the circumstance surrounding 

each case and we hope this Guide is a valuable resource toward that end. We very

much welcome feedback from parties as 

well as arbitrators on lessons learned from 

actual experiences with video arbitration. 

Resources

Several valuable resources were drawn 

upon in the preparation of this Guide; 

each is recommended as a source of 

further, detailed information. 

1. Center for Legal and Court Technology, Draft Report to the Administrative Conference of the United States, Best Practices 

for Using Video Teleconferencing for Hearings and Related Proceedings, October 8, 

2014, available at: https://

www.acus.gov/sites/default/files/

documents/Draft_Best%

2520Practices%2520Video%

2520Hearings_10-09-14_1.pdf. The 

Center for Legal and Court Technology (CLCT), based at William and Mary 

College of Law, is a non-profit research, education, and consulting 

For information about how to request a 

video arbitration panel, email or call the 

Office of Arbitration at 

arbitration@fmcs.gov or 202-606-5111. 

To inquire about or discuss FMCS policy 

or the world of video arbitration, contact 

Arbitration Director Arthur Pearlstein 

at the above number or email him at 

apearlstein@fmcs.gov. 
 16

organization that works to improve the 

administration of justice by applying 

technology. It aims to assist members 

of the legal profession, from courts 

and government agencies to judges and 

lawyers. Frederic Lederer, Director of 

CLCT and Chancellor Professor of 

Law, along with his colleagues, has 

been involved in many projects regarding the use of video in hearings, including the one for ACUS referenced 

above; they also host conferences, conduct training, and run the “Court 

Affiliates Program,” an information 

exchange designed to share and obtain 

legal, technical, and practical information on the use of technology by 

courts and administrative agencies. 

FMCS is a member of the Court 

Affiliates Program. 

2. Homer C. La Rue, A Short Paper on the 

Existing and Future Use of Videoconferencing 

in Labor-Management and Employment Arbitration, National Academy of Arbitrators, 

Fall Education Conference (Sept. 22, 

2019), Available at: https://

law.missouri.edu/arbitrationinfo/?

s=La+Rue. Homer LaRue is a Professor 

of Law at Howard University, Vice President of the National Academy of Arbitrators, an arbitrator on the FMCS Roster, and a leader in arbitration and dispute resolution, including as a pioneer in 

the use of video in arbitration. 

3. The National Academy of Arbitrators 

(NAA) is an elite association of labor 

arbitrators in the U.S. and Canada with 

an ongoing mission of establishing and 

fostering the highest standards of integrity and competence in the profession. 

FMCS has partnered with the NAA on 

many projects, including the effort to 

raise awareness and provide information on the use of video in labor arbitration. The NAA, through its President Barry Winograd and its Presidentelect Dan Nielsen, empaneled a Videoconference Task Force (VTF) that has 

developed important and useful materials for arbitrators, referenced below and 

used in the preparation of this Guide. 

Advocates will also find much in these 

materials to be very valuable. FMCS 

hosted a webinar where a panel of arbitrators from the VTF provided information and training for labor arbitrators 

on the use of video in hearings. Over 

430 arbitrators on the FMCS Roster 

participated in the webinar. The panelists included Jeanne Charles, Chair of 

the VTF, Homer LaRue, Joan Dolan, 

and Keith Greenberg. A recording of 

the webinar is available at https://

www.youtube.com/watch?

v=dXmSQn1vNkI. Below are recommended NAA materials also relied upon 

in preparation of this Guide: 

a. NAA Videoconferencing Task Force, 

Videoconferencing Procedures: A Primer, March 2020, available at: https://

naarb.org/wp-content/

uploads/2020/03/

VideoconferencingProcedures.pdf.
 17

b. NAA Videoconferencing Task Force, 

Frequently Asked Questions About 

Videoconferencing for Arbitrators, 

April 2020 (and being updated on an 

ongoing basis), available at https://

naarb.org. 

4. National Center for State Courts, Court 

Technology Bulletin, Court Web Conferencing Tips, March 27, 2020, 

available at: https://

courttechbulletin.blogspot.com/ 

2020/03/court-web-conferencingtips.html. The National Center for 

State Courts (NCSC) is an independent, 

non-profit organization that provides 

research, information services, education, and consulting aimed at helping 

courts plan, make decisions, and implement time- and cost-saving improvements. NCSC has done considerable 

work in the area of video hearings and 

its “Court Technology Bulletins,” available at https://

courttechbulletin.blogspot.com/, provide information on video technologies 

among other matters. Their main web 

page at https://www.ncsc.org/ provides updates on Court responses to 

the pandemic, including information 

on software platforms being used for 

hearings. 

Notes: