How should arbitrators manage requests for postponements caused by uncertainty around school and college reopenings?
Please provide your thoughts/comments below.
Undoubtedly, the chairperson of tribunal plays a very important role in the arbitration process. How should the chairperson of the tribunal be selected? The following are some of the available options:
1. Highest ranked arbitrator with a strike and rank process if administered by an institution
2. Decided by the parties
3. Decided by the tribunal
4. Decided by the institution if administered by an institution regardless of the strike and rank process
5. A random drawing
What is the best option for selecting the chairperson and why?
Please provide your thoughts/comments below.
Sample Procedures for the Holding of the Hearing by Video Conference
Prepared by AAA-ICDR Arbitrator Steven Reisberg, Partner at Chaffetz Linsey, LLP
When should an arbitration proceeding be bifurcated? Should an arbitrator ever suggest and/or order bifurcation even if not requested by one or all parties?
Please provide your thoughts/comments below?
NYSBA Resolution Roundtable blog is running a series with arbitrators that have conducted virtual arbitration hearings since the pandemic. The following is a Q&A with AAA-ICDR Arbitrator Robin S. Abramowitz:
Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?
No.
What virtual platform did you use for your recent case?
Zoom.
How long was the hearing? Did you take breaks?
All day. We took short breaks.
Did you utilize the virtual breakout rooms?
No.
Did you require that you can see all parties visually?
Yes.
Where all parties in agreement to go virtual or was some convincing necessary?
Some convincing was necessary.
If one party objected, how would you have handled that?
On objection, and based on the nature of the case, the direct was presented via affidavits. The parties then agreed to use Zoom for the cross.
Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via Videoconference helpful?
Yes, very.
Did you parties share documents/exhibits? How did that go?
Had some glitches on that end. It was a learning experience for the next virtual hearing.
What was your experience determining the veracity of the witness via video?
I did not have any issue in that regard. It was easy to see the witness and access credibility.
Do you think virtual hearings will be the norm in the future?
I could see where it will be used to save time and money on travel.
Any other thoughts about conducting virtual hearings?
I would like to see more hands on training in the use of Zoom for hearing.
What should an arbitrator do where a party (generally a Respondent, but it could be a Claimant, and also could be one or more of the Respondents or one or more of the Claimants) has been from the outset (or possibly partially or intermittently) nonparticipating, and there is radio silence as to whether or not such party agrees to a virtual hearing and/or will or will not participate in one. An ancillary issue is where the arbitration clause expressly states that the parties agree that the hearing will be conducted in (or located in) a particular geographic and/or physical locale (e.g., "in the State of New York" or "at the offices of the Claimant or Claimant's counsel" or perhaps "at the offices of AAA-ICDR or JAMS"), and either (i) a party or part(ies) demand(s) that such a provision be adhered to (and it is in fact legally and physically possible to conduct the hearing in person in such locale), or (ii) there is radio silence on the party of a party as to whether or not the party will attend a virtual hearing rather than an in-person one. Separately, for how long should the arbitrator be awaiting persuasive authority (statutory and/or judicial) to guide her/him on the due process issues where at least one party has not expressly approved a virtual hearing (particularly within the pandemic context) rather than risk vacatur (while keeping in mind the mission of expediting the ADR process)?
Please provide your thoughts/comments below.
The NYSBA Resolution Roundtable blog is running a series with arbitrators
that have conducted arbitration hearings since the pandemic. The following is a a Q&A session with AAA-ICDR William Crosby:
Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?
No.
What virtual platform did you use for your recent case?
Zoom.
How long was the hearing? Did you take breaks?
We had 5 consecutive days of hearings followed by 2 additional day the following week. We have at least 2 additional days that will be scheduled for later this summer.
Did you utilize the virtual breakout rooms?
Yes. The panel was able to conference using the breakout rooms and the parties were able to use them as needed.
Did you require that you can see all parties visually?
Witnesses and counsel needed to have their video on. We did allow party representatives to appear without video from time to time.
Where all parties in agreement to go virtual or was some convincing necessary?
The parties had not given much thought to virtual hearings before we as a panel raised the issue, but they quickly agreed on the process and we were able to move forward with minimal delay.
If one party objected, how would you have handled that?
We would probably have allowed for some additional time to see if the situation changed. However, we were very clear as a panel that there could be a long period of uncertainty regarding in-person hearings and we strongly advised the parties to plan for remote hearings.
Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via video conference helpful?
They were very helpful in framing the issues.
Did you parties share documents/exhibits? How did that go?
The panel requested traditional binders, but we also had access to online display of exhibits. By the second day of hearings, the panel had largely abandoned the binders and we were all comfortable using online documents.
What was your experience determining the veracity of the witness via video?
I actually found that it is easier to assess the veracity of the witness via video. The camera is focused on the face and the witness appears much closer than in person. I was able to see facial expressions clearly and I could tell when a witness was uncomfortable.
Do you think virtual hearings will be the norm in the future?
Yes.
Any other thoughts about conducting virtual hearings?
The process is a bit more draining than in person because you are staring at a screen for so long. Remembering take occasional breaks is important. We did have occasional technological glitches, but nothing that made me sour on remote hearings. I think we as a panel were able to do our job as effectively as we would have in person.
The NYSBA Resolution Roundtable blog is running a series with arbitrators that have conducted virtual arbitration hearings since the pandemic. The following is a Q&A session with AAA-ICDR Arbitrator Michael Walsh:
Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?
No.
What virtual platform did you use for your recent case?
Zoom.
How long was the hearing? Did you take breaks?
5 hours - one 1/2 hour beak, 2 ten minute breaks.
Did you utilize the virtual breakout rooms?
Yes.
Did you require that you can see all parties visually?
Yes.
Where all parties in agreement to go virtual or was some convincing necessary?
All agreed.
If one party objected, how would you have handled that?
Assuming the Party wanted to proceed, try to convince the Party that not proceed virtually will likely result in delay.
Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via video conference helpful?
Very.
Did you parties share documents/exhibits? How did that go?
Yes - a little awkward but managed to work it out
What was your experience determining the veracity of the witness via video?
Not nearly as compromised as I expected - although body language not as visible, facial
expressions clear and revealing.
Do you think virtual hearings will be the norm in the future?
For smaller arbitrations definitely.
Any other thoughts about conducting virtual hearings?
Using the AAA document "window" to show admitted documents very helpful. Eve Gordon of AAA Rhode Island office is a real pro.
NYSBA Resolution Roundtable blog is running a series with arbitrators that have conducted virtual arbitration hearings since the pandemic. The following is a Q&A session with AAA-ICDR Arbitrator Alfred Feliu:
Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?
No.
What virtual platform did you use for your recent case?
ZOOM.
How long was the hearing? Did you take breaks?
3 hearings, two were two days each, one was one day.
Did you utilize the virtual breakout rooms?
Yes.
Did you require that you can see all parties visually?
Yes.
Where all parties in agreement to go virtual or was some convincing necessary?
One out of six parties objected.
If one party objected, how would you have handled that?
I overruled the objection and proceeded with the hearing
Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via video conference helpful?
Yes, very much so
Did you parties share documents/exhibits? How did that go?
Yes, generally it went well in each instance
What was your experience determining the veracity of the witness via video?
I have no issues with respect to gauging credibility and veracity
Do you think virtual hearings will be the norm in the future?
No, but believe it will be employed as appropriate and with greater frequency than pre-pandemic.
Any other thoughts about conducting virtual hearings?
1. AAA Model Order was extremely helpful, I have issued a revised version in each of my cases.
2. Witnesses should be provided with hard copies of the exhibits whenever possible.
3. Having an AAA administrator present during the hearing was very helpful.
4. Counsel need to be directed to ensure the suitability of their parties' and witnesses technology and comfort with the process.
The NYSBA Resolution Roundtable is running a series with arbitrators that have conducted virtual arbitration hearings since the pandemic. The following is a Q&A session with AAA-ICDR Arbitrator Deborah Masucci:
Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?
Yes.
What virtual platform did you use for your recent case?
Pre-pandemic, I used google hangout. Now I conduct telephonic hearings.
How long was the hearing? Did you take breaks?
On the telephone the hearings are 40 minutes and no breaks. On google hangout they can be as long as 2 hours with no breaks. These are basically hearings where the amount in controversy is under $20,000.
Did you utilize the virtual breakout rooms?
No.
Did you require that you can see all parties visually?
No.
Were all parties in agreement to go virtual or was some convincing necessary?
Yes.
If one party objected, how would you have handled that?
No one ever objected.
Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via video conference helpful?
Yes.
Did you parties share documents/exhibits? How did that go?
No, but we had a website where the exhibits were collected. Each party uploads a statement and their exhibits pre hearing and we all could see the same documents. The parties have an opportunity to supplement the exhibits post hearing and each side has the opportunity to comment on the other side's post hearing submissions.
What was your experience determining the veracity of the witness via video?
I questioned the witness and in one case found that the witness was not who he purported to be so disregarded his testimony and made sure the Award reflected the improper witness appearance.
Do you think virtual hearings will be the norm in the future?
Yes.
Any other thoughts about conducting virtual hearings?
Telephonic hearings are harder because there's an instinct for one witness to interrupt the other. Despite ground rules.
Recent Comments