Arbitration Tips-N-Tools (TNT): Round 23

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In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about advice for attorneys deciding between online arbitration (OArb) and in-person arbitration, especially in a digital world, and faced with the complexities of the Covid-19 pandemic.

Round 23: What advice do you have for attorneys deciding between online arbitration (OArb) and in-person arbitration in the digital and Covid era – list your top 3?

Responses:

A) Olof Heggemann –

The advice probably depends on what the client “wants” from the dispute.

If the client mainly just wants to get the proceedings over with, then probably a digital proceeding is the way to go.

If the parties will continue conducting business afterward, perhaps a physical hearing could ease tension.

If many parties and stakeholders are involved, online arbitration makes it easier for them to keep their eyes on what is happening by attending digitally, without devoting several days or weeks in a conference room.

B) Oladeji M. Tiamiyu –

Understand what your jurisdiction’s restrictions are for in-person meetings

Prioritize the participants’ preferences. For example, understand whether participants have transportation challenges that would make in-person arbitration complicated or whether participants have technological limitations that would make OArb complicated. The last thing you want is to force participants into an environment they are uncomfortable with.

Identify whether the underlying dispute is a type that benefits from having ample non-verbal communication involved. For instance, there may be a different analysis when arbitrating employment-related disputes where parties are accustomed to being in-person and the underlying tension has been triggered by emotional neglect when compared to commercial arbitration for non-compliance in the shipment of semiconductors when the transacting parties have significant geographic distance and are accustomed to speaking remotely.

C) Myriam Seers –

In general, I think it’s fair to say that an online process will usually be more efficient, both time- and cost-wise. Whether that is a relevant consideration will depend on the proceeding and the parties (see my point below). Another consideration is whether the dynamic between the parties is such that they would be more likely to reach a settlement if brought in person together for the duration of an in-person hearing. If that is the case, an in-person hearing might make sense. Otherwise, I think that the decision is one driven mostly by efficiency.