This article first eppared on the JAMS ADR Blog, here.
I just finished my first virtual arbitration, which involved a multi-million-dollar dispute between a large medical system and an extensive payer network, two weeks of testimony and hundreds of thousands of pages of documents. Although conducting more than 150 virtual mediations during the pandemic helped prepare me, I definitely learned some lessons.
Arbitration is, by its nature, a more formal process than mediation. Instead of facilitating an informal resolution, the arbitrator generally is tasked to render a binding judicial determination, which involves taking testimony, admitting evidence and ruling on objections. Accordingly, more planning and preparation are necessary to ensure a smooth and fair process.
1. Choreography is Required
I have often noted that virtual mediations require choreography—a sequence of planned steps to ensure that the parties have a general understanding of what will happen when, at least at the outset, in the mediation process. Virtual arbitrations require additional planning in this regard. In order to set the stage for success, these were the steps that I found effective.
First, in advance of the final pre-hearing conference, I provided both sides with detailed procedures for virtual hearings. These covered everything from using virtual backgrounds (not allowed) to maintaining privacy and security to handling technical challenges.
Next, I scheduled a practice session approximately a week before the hearing. JAMS offers this complimentary process to lawyers involved in virtual alternative dispute resolution, so I invited the lawyers and their teams to attend this test session to allow participants the opportunity to see how the hearing would progress, test connectivity and ask questions.
Third, I asked for an order of proof to be prepared jointly by the parties. This gave everyone a rough schedule as to the hearing of objections, the presentation of evidence and the scheduling of witnesses. While we deviated from the schedule somewhat, this enabled the parties to present their cases in an orderly manner.
Finally, while mediations may involve some sharing of documents, an arbitration can involve tens, if not hundreds, of thousands of pages of documents. During the hearing, each side had a dedicated professional who handled sharing documents onscreen. This was especially important in this case, as there were more than 100,000 pages of evidence.
2. Maintain Focus
Although virtual mediations require focus, virtual arbitrations require an extra level of attention to detail. Mediations are different from arbitrations in that (1) all the participants generally arrive at the beginning of the session; and (2) mediations tend to have a more fluid and somewhat spontaneous flow, as the mediator or the moderator provided by JAMS moves between the various caucus rooms.
Arbitrations are more structured—a morning break, lunch and an afternoon break. Yet at the same time, participants are moving in and out of the hearing. Lawyers not involved in the questioning of a particular witness may leave and then rejoin the session later. Witnesses are usually scheduled to appear only when it is their time to testify, and they also need to be admitted to the hearing. When breaks occur, the parties need to be placed into their respective private caucus rooms. Mistakes in handling these logistics can be disastrous, so managing all of this requires keen attention and focus on the part of the arbitrator or the moderator.
3. Make Sure You Have the Necessary Tools
Managing a virtual arbitration also requires the right set of tools. In my case, four screens were necessary for the proceedings: a laptop to run the Zoom meeting; an iPad to display the real-time transcript from the court reporter; my personal iPad, where I keep my briefs and type my notes; and another laptop to view the electronic documents that had been provided by the parties.
Correct lighting also is essential. The best lighting for virtual meetings comes not from the side or the back, but from the front. A ring light works well.
A fast and reliable internet connection is required. We fortunately had upgraded our home network prior to the pandemic. I also have a “MiFi” mini wireless in the event of an emergency.
4. Remember to Move
The one piece of equipment that I did not have (and wish I did) is a standing desk. In a virtual mediation, the mediator has the opportunity to frequently move and change positions. Arbitration is much more static, requiring long bouts of focused attention punctuated by scheduled breaks. Being able to use a standing desk would have allowed me to change position more frequently. Building in time to stretch or take a walk also helps avoid muscle tightness from extended sitting.
5. Cultivate the Proper Habitat
Conducting a multi-million-dollar arbitration from the comfort of your home is not without its distractions and challenges. Conducting virtual mediations during the pandemic has provided us opportunities to meet each other’s pets, partners and children. It is not unusual to hear babies crying and dogs barking. But again, arbitration necessarily is a more formal process and therefore requires a bit of planning to ensure the proper environment.
My kids are in college, but we have many pets. On days when there may be extra distractions (i.e., the gardeners), the dogs are dispatched to a neighbor’s house.
Lastly, make sure you take care of your skin. Spending nine hours sitting in front of four screens, absorbing blue light from the computers and rays from the ring light, actually caused my skin to burn. Given that it is early March, and we are not traveling anywhere, this possibility never entered my mind. The final lesson I learned is to wear sunscreen.
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