Proposed Guidelines for Arbitral Disclosure of Social Media Activity 

Assistant Dean Zamoff will present his recent article from the Cardozo Journal of Conflict Resolution which was recognized as the Best Scholarly Article of 2023 by the Alternative Dispute Resolution section of the Association of American Law Schools.

The article draws upon existing conflict-of-interest disclosure laws and regulations, as well as research on social media categorization and usage, to propose the first comprehensive set of guidelines for the disclosure of arbitral social media activity. This guidance comes at a critical time for the ADR community. The continuing absence of a coherent set of principles governing arbitrator disclosure of social media activity will jeopardize the durability of arbitral awards—which will increasingly be challenged based on undisclosed social media activity—and will threaten, over time, to undermine the integrity of the arbitrator selection process. It also will continue to pollute the marketplace for arbitral services, where arbitrator disclosures about social media activity are inconsistent and difficult to interpret by parties and their counsel.

After providing a thorough review of (1) the patchwork of statutes, ethical rules, and cases governing the disclosure of arbitrator conflicts of interest outside the social media context, and (2) the importance of a transparent and robust arbitrator selection process, the article proposes concrete guidelines for the disclosure of social media activity in which arbitrators are most likely to engage. The proposal is premised on the guiding principles (1) that the guidelines should promote compliance with existing disclosure rules, (2) that the scope of disclosure should extend to affirmative conduct by an arbitrator that results in an ongoing social media relationship with a participant in the arbitration, and (3) that the research obligations imposed on arbitrators by the guidelines should be practicable. The article demonstrates that the guidelines yield clear, consistent disclosure outcomes in scenarios that are the subject of inconsistent treatment today.

Mitchell E. Zamoff is the Assistant Dean of Experiential Education and the J. Stewart and Mario Thomas McClendon Professor in Law and Dispute Resolution. He teaches alternative dispute resolution (ADR), civil procedure, evidence, evidence drafting, Law in Practice, and Introduction to American Law (a course offered to undergraduate and non-law graduate students). Zamoff is a two-time recipient of the Kinyon Teacher of the Year award.