In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about executing an arbitration hearing, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
Round 4: What are your 3 top tips and/or tools with respect to executing an arbitration hearing – especially in the digital era and complexities of Covid?
A) Theo Cheng –
- Especially during the time of the pandemic, it would not be surprising for participants to hold differing views on whether an evidentiary hearing should proceed in-person or remotely. When there is a fundamental disagreement about the manner in which the proceeding should be conducted – particularly, the main event – the default arguably ought to be what the parties had originally intended when they entered into the agreement, namely, the traditional in-person hearing. But the pandemic presents a dynamically changing situation, and the uncertainties it creates has the potential to indefinitely postpone the scheduling of in-person hearings. There are many factors to consider in determining which format would make the most sense for any particular dispute. All arbitration participants should strive to create a complete record of all views on the matter before the arbitrator rules on an application or objection to converting an in-person hearing to a remote hearing.
- In today’s pandemic age, the tribunal should schedule a separate conference with counsel to address and agree-upon the protocols that the participants will use to conduct the hearing, irrespective of whether it will take place in-person or remotely, so as to account for the health and safety concerns raised by COVID-19. For in-person hearings, adequate protocols should be adopted to safeguard the health and well-being of the participants, while also ensuring that a fair and impartial hearing can be conducted. For remote hearings, the choice and manner of use of the video teleconferencing platform (including the selection of appropriate equipment by all participants and the scheduling of a test session) should be discussed and made clear so as to minimize technological disruptions. The conference should also preferably be held several weeks before the commencement of the evidentiary hearing so as to provide counsel with an opportunity to make adjustments in hearing preparation.
- To the greatest extent possible, hard copies should be eliminated and electronic versions of hearing exhibits and other hearing materials used. Not only is this more efficient, cost-effective, and environmentally friendly, but it also minimizes the health and safety concerns associated with having to make photocopies or multiple printouts, handle physical documents, and sending documents through the mail or via a courier service.
B) Daniel Urbas –
- Have parties negotiate admitted facts to reduce the scope of discovery or eliminate altogether
- Limit discovery to specific issues and set time durations
- Schedule only after both parties have committed to a detailed statement of claim or statement of defense (filed after the notice of arbitration and response to notice)
C) George Friedman –
- Use a High-quality HD Camera: And invest in decent lighting. Also, keep the camera slightly above your head.
- Give Frequent reaks: “Zoom fatigue” is a known risk. Plan more frequent breaks than you would at an in-person hearing, and let the participants know in advance. I try to declare short breaks every 75-90 minutes (and I do mean short – 5 to 7 minutes max).
- Keep Your Shirt On: Conduct the hearing from a secure, private area of your home or office. No one wants to see a significant other strolling by after taking a shower. Or your sweatpants.
D) DeAndra Roaché –
- Have a strong internet connection
- Invest in a webcam and large screen
- Use waiting room and spotlight features
- If not using a technologist, be familiar with the online platform that will be used (practice & study tutorials online)
- The platform must provide a means for sequestering witnesses (breakout rooms)
- Be Organized! Have files and materials accessible before the session begins
- Include breaks to avoid or minimize Zoom fatigue
- Arbitrator(s) must have a contingency plan in place, e.g., a back-up conference line, should the primary platform fail or otherwise become impractical.
E) Stacie Strong –
- Test video connections in advance not only for bandwidth but also to make sure the witness’s face can be seen in close up.
- Don’t be afraid of video hearings – they can be very effective and can actually speed things up if done properly.
- Consider a more civil-law style hearing where the arbitrator takes more control over the proceedings in order to streamline the process.
Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week…..