Arbitration Tips-N-Tools (TNT): Round 24

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In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about when an online arbitration (OArb) might be less beneficial than in-person arbitration, especially in a digital world, and faced with the complexities of the Covid-19 pandemic.

Round 24: When might online arbitration (OArb) be less beneficial than in person arbitration?

Responses:

A) Olof Heggemann –

If there is any chance of a settlement before the end of the proceedings, my assumption is that this change will be reduced without the more relaxed and “less official” channels available for talking during in-person proceedings.

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 –

I think that in proceedings with a very large amount of money at stake and large legal teams on both sides, the value proposition of an online proceeding is arguably lessened, since efficiencies become less important relative to the amount at stake.