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

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.

author

Myriam Seers

Myriam joined Savoie Laporte as a partner in 2021 after practising for 14 years in major Canadian business law firms. She specializes in investment treaty arbitration and international commercial arbitration, with a particular focus on disputes arising from the mining, electricity (including renewable energy), oil & gas and transportation sectors.…

author

Olof Heggemann

I have a professional background from the Swedish public court system and experience from working in banking and law firms. The idea behind the founding of Eperoto is something that grew during my working years. Having a keen interest in technology I truly believe in the potential of new ways…

author

Oladeji Tiamiyu

Oladeji M. Tiamiyu is a Clinical Fellow at the Harvard Negotiation and Mediation Clinical Program. Prior to joining HNMCP, Oladeji was an Online Dispute Resolution Fellow with the Resolution Systems Institute in Chicago, Illinois where he helped in developing a pilot online dispute resolution program for family law disputes. Oladeji…

author

Amy Schmitz

Professor Amy Schmitz is the John Deaver Drinko-Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law. From 2016-2021 Professor Schmitz was the Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law and the Center for Dispute Resolution.…

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