May 2020 Archives

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Claimant and Respondent are engaged in a commercial arbitration. While they were once business partners, they are now competitors in the industry. During discovery, Respondent's counsel objects to production of certain documents on the basis that they will reveal Respondent's proprietary "secret sauce" for making money. (The claim is proprietary information, not trade secrets.) Claimant's counsel counters that the documents speak to both breach of contract and damages and are relevant and necessary for preparation of the case. Respondent's counsel then requests a confidentiality order making these documents for "attorney's eyes" and "expert's eyes" only. Claimant's counsel says that makes it harder to prepare his case and forces his client to hire an expert. And even then, there may be some factual analysis of the documents that only Claimant can resolve.

Should the arbitrator order the confidentiality classifications that Respondent has requested? Generally, what parameters should the arbitrator use to weigh an "attorney's eyes" only request?

Please provide your thoughts/comments below.

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Resolution Roundtable is running a series with arbitrators that have conducted arbitration hearings since the pandemic. The following is a Q&A session with AAA-ICDR Arbitrator David Singer:

Have you conducted a virtual hearing or video conference for an arbitration pre-pandemic?

I have used videoconferencing for individual witnesses who were not available to testify in person.

I have also received testimony by telephone.

What virtual platform did you use for your recent case?

Zoom.

How long was the hearing? Did you take breaks?

The hearing took two full days.

Did you utilize the virtual breakout rooms?

Yes, we used breakout rooms for breaks between witness testimony.

Did you require that you can see all parties visually?

All participating counsel and testifying witnesses were visible. Parties/party representatives who requested that they not be visible were permitted to do so.

Where all parties in agreement to go virtual or was some convincing necessary?

Claimants wanted to proceed remotely; Respondents did not want to proceed remotely.

If one party objected, how would you have handled that?

The arbitration was in the middle of evidentiary hearings when the pandemic caused in-person hearings to be impossible. The delay in resuming the hearings in-person was indefinite. Under the circumstances, the Tribunal decided that the unfairness to the Claimants due to the indefinite delay outweighed any concerns of Respondents in proceeding remotely with the remainder of the evidentiary hearings. Accordingly, the Tribunal directed that the hearings proceed remotely.

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; we used the materials as helpful references.

Did you parties share documents/exhibits? How did that go?

Exhibits were circulated in hard copy and/or flash drives in advance of the remote hearings. Therefore, there was virtually no need to use the screen share function during the hearings

What was your experience determining the veracity of the witness via video?

I felt that my ability to assess credibility was not compromised by viewing the testimony remotely. It certainly was better than watching the witnesses testify live while wearing a mask. By clicking on the Zoom function "pin video," the testifying witness occupies almost the entire screen. That enabled me to observe the witness up close, more to so that if we were at an in-person hearing.

Do you think virtual hearings will be the norm in the future?

I think that, once people participate in remote hearings, they will become more comfortable with the technology and more open to participating in them again. I think remote hearings will become more common, especially when dealing with witnesses who would otherwise need to travel distances, at great expense and inconvenience, to the locale of the evidentiary hearing.

Any other thoughts about conducting virtual hearings?

I don't expect remote hearings to replace in person hearings. However, I think remote hearings will become more commonplace. The possibility of conducting the evidentiary hearing remotely, in whole or in part, can be raised at the preliminary conference of any arbitration.

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Can arbitrators order a virtual hearing over the objection of both parties, who want an in-person evidentiary hearing? If the arbitrators do order a virtual hearing over the objection of both parties, what specific findings must they make in order to justify that outcome? If the arbitrators cite health concerns and their duty under the rules to resolve disputes expeditiously as the reasons for a virtual hearing, can that withstand analysis if both parties state that they don't mind the delay and are willing to wait until it is safe to hold an in-person hearing?

Please provide your thoughts/comments below.

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Resolution Roundtable is going to run a series with arbitrators that have conducted arbitration hearings since the pandemic. The following is a Q&A with AAA-ICDR Arbitrator JACQUELIN F. DRUCKER:

Have you done a virtual hearing or video conference for an arbitration pre-pandemic?

Yes.

What virtual platform did you use for your recent case? Zoom, for a number of recent cases.

Previously, I had used WebEx, but I (and, it seems, most parties and counsel) greatly prefer Zoom.

How long was the hearing? Did you take breaks?

My Zoom hearings have varied from multi-day, with each day lasting five to six hours, to one that was completed in two hours. In the longer hearings, wedid take breaks. I move the participants into separate party-only breakout rooms for brief lunch breaks (Witnesses in the midst of testimony go into the waiting room.). For other, briefer breaks, the participants and I just step away or stop video for five or ten minutes. At in-person hearings, I tend to be oblivious of the need for breaks and always advise the parties not to be hesitant to speak up. In virtual hearings, I do the same, and I demonstrate the "raise hand" function, which may be used for this purpose. So far, however, breaks have fallen into place easily and logically. I find that occasional breaks, allowing everyone to step away from the camera for just a few minutes, enhance everyone's comfort with the process.

Did you utilize the virtual breakout rooms?

Yes. They are extremely helpful. For each hearing, I set up several rooms: one for each party, one for attorneys only, and a spare, at a minimum. Did you require that you can see all parties visually? I have not had to require this, but, in all of my virtual hearings, party representatives, counsel, and witnesses all have been on video. Some non-witness participants have joined by audio, without video, with the consent of the parties (I note that counsel have told me that some witnesses feel distracted by seeing themselves while they are speaking. As a result, I explain to participants how to turn off their camera-side image temporarily if they prefer.).

Were all parties in agreement to go virtual or was some convincing necessary?

My process with hesitant parties/counsel has been to encourage a conference call on Zoom to discuss the use of that platform. This step often allays concerns. I also schedule a preliminary practice session to ensure that everyone is set up for proper access and understands how to participate. I have several pending matters, however, in which the parties are firm in their desire for in-person hearings, even though that means delaying the hearing well into 2021. In discussions, I remind the parties that, when in-person hearings resume, physical distancing requirements may make the experience different from that to which we have been accustomed.

If one party objected, how would you have handled that?

At this point, I have proceeded only when both parties have agreed. If one party were to object but there were pressing needs to move quickly and the case would be manageable on a virtual platform, I would consider requiring use of the process. I am concerned, however, about the practical effects of requiring a highly resistant party to use a mechanism with which that party may not want to become familiar. In some instances, I have secured agreement from the parties that we will proceed on a given future date in person,if feasible and safe forall concerned, but,if not feasible (which is a determination I will make after input from the parties), we will proceed by virtual platform.

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. The suggested Zoom operator settings provide an excellent starting point for those learning how to use the platform.

Did your parties share documents/exhibits? How did that go?

Yes. I instruct the parties to use email or other electronic file- transfer system to exchange, before the hearing, all anticipated exhibits and toconvey them to me in the same manner. I print key documents for my use during the hearing, and I have a second computer and a tablet on hand during the hearing to pull up electronically stored exhibits when needed. We also have used the Shared Screen function to display exhibits for witnesses, to create and preserve diagrams, and for the introduction of unplanned exhibits. In some instances, the parties have used email to send unanticipated exhibits during the hearing. I have not used the Chat function for transfer of exhibits during hearings, although I have tested it in meetings.

What was your experience determining the veracity of the witness via video?

Over the years, I frequently have taken testimony via video and also by telephone, so this is not a new factor for me. I view demeanor as an often-unreliable indicator of veracity (although the assessment of demeanor on
direct vis à vis cross can be useful), and I tend to rely predominately on elements other than demeanor in making such assessments. I therefore always have been comfortable making credibility calls based on testimony presented virtually. What I find interesting, however, is that recorded video testimony presents the potential for a different approach to evaluation. I think that the ability to pause, replay, and review video testimony for the purpose of scrutinizing the witness or parsing testimony may change the way a finder of fact assesses it, beyond what we do when observing a witness "live" (whether in person or virtually) and later reviewing only a transcript or notes. Perhaps some study of this factor would be useful.

Do you think virtual hearings will be the norm in the future?

I think there will be an important role for virtual hearings in the future, post-pandemic. I anticipate, at a minimum, an increased use of video platforms for distant or otherwise unavailable witnesses. Any other thoughts about conducting virtual hearings? Occasionally, a party suggests use of a platform that the party would operate. I think that this is not advisable and I have not permitted such approach (This is contrasted, however, with platforms operated by a jointly retained court reporting service.). Some parties and law firms have policies that preclude the use of Zoom. I understand that the Association does not and cannot endorse any given platform, but I think exploration of workable alternatives to Zoom or ways to make Zoom acceptable to concerned parties may be useful. Also, during this time of restrictions, it is worth noting that not everything has to take place on a video platform. Certain steps, such as pre-hearing conferences, that previously have been conducted successfully by telephonic conference still may be conducted quickly and efficiently by telephone. Sometimes a pre-hearing on a virtual platform is the ideal way to introduce counsel to the process, but, when that is not needed, the telephone may remain a simpler approach.

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Do you believe that a losing party in an arbitration, who objected to the holding of a virtual hearing and requested that the hearing be postponed, but was forced to go forward with the virtual hearing by the Tribunal, will have good grounds to challenge the result under FAA §10 (a)(3)?

[W]here the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced...

Please provide your thoughts/comments below.

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Resolution Roundtable 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 Richard Ziegler:

Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?

Yes - both hearing and preliminary conference.

What virtual platform did you use for your recent case?

Zoom in both cases

How long was the hearing? Did you take breaks?

Hearing - two days. We took the usual breaks - for counsel to consult colleagues before completing cross-examinations, and for lunch

Did you utilize the virtual breakout rooms?

Yes: counsel used the party-only breakout rooms, and the tribunal used the "arbitrators lounge"

Did you require that you can see all parties visually?

We permitted corporate representatives to attend solely by telephone; all counsel and witnesses participated by video and audio

Where all parties in agreement to go virtual or was some convincing necessary?

The parties were initially reluctant but jointly acquiesced as the pandemic proceeded.

If one party objected, how would you have handled that?

It would depend on the objecting party's reasons; I believe tribunals have the authority to require hearings by remote video conference under AAA-ICDR rules, barring an express arbitration agreement to the contrary

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, the hearing was supported by an AAA-ICDR remote video "Champion" who was exceedingly helpful.

Did you parties share documents/exhibits? How did that go?

The Parties shared paper and electronic copies of both the direct and cross exhibits in advance; as a result, the examinations proceeded smoothly.

What was your experience determining the veracity of the witness via video?

There was no apparent impediment to assessing the witness' credibility - the video images were clear

Do you think virtual hearings will be the norm in the future?

I hope they do not become the norm, at least in significant cases, but I think they will certainly become more common.

Any other thoughts about conducting virtual hearings?

Tribunals need to closely monitor the actual conduct of the proceeding to ensure fairness to all Parties.

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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 Daniel Brooks:

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?

It was a short hearing because it was a default. It lasted 1 ½ hours. We did not take a break.

Did you utilize the virtual breakout rooms?

No.

Did you require that you can see all parties visually?

Yes (claimant's two attorneys, its witness and the court reporter).

Where all parties in agreement to go virtual or was some convincing necessary?

Yes.

If one party objected, how would you have handled that?

Since the respondents defaulted and did not appear, this did not come up.

Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via Video Conference helpful?

I don't believe I had reviewed them (and may not have received them) prior to the hearing.

Did you parties share documents/exhibits? How did that go?

Some exhibits were shared and offered and introduced into evidence. That went smoothly. I believe I had already received copies of those exhibits prior to the hearing.

What was your experience determining the veracity of the witness via video?

I did not think that the remote nature of the hearing interfered with determining the witness' veracity. But, if there had been cross-examination, I'm not sure if that would have affected this issue.

Do you think virtual hearings will be the norm in the future?
I think it will be a viable option.

Any other thoughts about conducting virtual hearings?

It seems like an efficient way of resolving certain disputes.

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Resolution Roundtable is running a series with arbitrators that have conducted a virtual arbitration hearing since the pandemic. The following is a Q&A with AAA-ICDR Labor and Employment Arbitrator Janet Spencer:

Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?

I have done one video hearing so far. It was an AAA case but I set it up and hosted it myself, with some help from a techie, and prior training.
What virtual platform did you use for your recent case?
Zoom

How long was the hearing? Did you take breaks?

This hearing went over three days in one week, but this was due to the unexpected unavailability of one of the counsel. So the sessions were no more than 4-5 hours I would say. We took at least one break to my recollection. The third session went from 4 to 8 pm; that I do remember.

Did you utilize the virtual breakout rooms?

Yes. I had the list of the Union participants and the Employer participants and their email numbers in advance and assigned them to the respective breakout rooms before the hearing. Had also set up additional breakout rooms but we didn't use them.

Did you require that you can see all parties visually?

If you mean all at the same time, no. Didn't think of it.

Where all parties in agreement to go virtual or was some convincing necessary?

All agreed. The case had already been postponed. One of the counsel had recent experience and the other had no objection.

If one party objected, how would you have handled that?

I guess I would have discussed the issue with them in a conference call. To elicit the pros and cons of delay. Try to work out a solution, e.g. schedule in September, but if turns out in person hearing still not possible, order Zoom hearing. Still feel a bit reluctant to impose it.

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 not yet out when I held the hearing which was in mid March as I recall, but I did have the NAA materials and I was already in training on Zoom.

Did you parties share documents/exhibits? How did that go?

Yes. I had the parties exchange documents they planned to enter in evidence in advance and to each send me all exhibits by email and snail mail. I then posted on my computer. The witnesses had copies of the exhibits they were testifying to, but one witness was presented with an exhibit he did not have on cross-examination. This was my moment to share the screen! But by the time I orchestrated the appropriate maneuver, however, (seconds, really!) counsel was reading the relative portion to the witness. Needless to say, I have been refining my skills in this area.

What was your experience determining the veracity of the witness via video?

I did not feel hampered in this case.

Do you think virtual hearings will be the norm in the future?

After the pandemic, you mean. I can see it might have long term appeal to parties wanting to reduce travel expenses. My guess is that parties and arbitrators will continue to prefer in person hearings.

Any other thoughts about conducting virtual hearings?

I liked Charlie Moxley's idea of Zoom's figuring out a way to replicate the hearing room configuration of the participants. Beyond this, I look forward to acquiring the same comfort level I have with in person hearings, which is doable, I believe. Right now we are all preoccupied with the technical aspects of dealing with Zoom but, to my surprise, in my one case so far, much of the time I was looking at the witness and making notes, just as usual. There were times, though that it was difficult to do this and manage the Zoom at the same time. This reminds me of one aspect of Zoom I have not explored at all, and that is the recording. I am assuming that the recording is simply a video of the hearing. Having assumed this, I assume it is not a viable substitute for a court reporter. I guess it might be useful if there is a lapse in my note-taking and/or memory.

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Resolution Roundtable is running a series with arbitrators that have conducted arbitrations since the pandemic. The following interview was with AAA-ICDR Arbitrator Sherman Kahn:

Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?

Yes. I conducted a full evidentiary hearing in an expedited matter by video conference.

What virtual platform did you use for your recent case?

We used Zoom.

How long was the hearing? Did you take breaks?

The hearing was one day with approximately six hours of argument/testimony. We took a half hour lunch break and two short coffee breaks.

Did you utilize the virtual breakout rooms?

No.

Did you require that you can see all parties visually?

I did not explicitly require it as all parties and witnesses assumed that all parties would be seen visually. Had the issue come up, absent special circumstances, I would likely have required it.

Where all parties in agreement to go virtual or was some convincing necessary?

All parties were in agreement to proceed by video conference. I note that I say "by video conference" because the hearing was just as real as a hearing I which all the parties are in the same room. The word "virtual" can be a bit misleading under these circumstances. The parties are "virtually" in the same room, but the hearing itself is not virtual, it is just conducted by video conference.

If one party objected, how would you have handled that?

That would depend on the specific circumstances. I have not faced that issue yet as in all arbitrations I am currently handling the parties either agreed to proceed by video conference or agreed to postpone the evidentiary hearing until they could have a traditional 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?

I am sure that the AAA-ICDR guide and model order would have been useful, but they had not yet been released at the time of the hearing I have described.

Did you parties share documents/exhibits? How did that go?

Yes, the parties exchanged and provided to me a bundle of exhibits in advance of the hearing and we used Zoom's document display feature to display the exhibits during the hearing. We had no technical problems with document display.

What was your experience determining the veracity of the witness via video?

I think the format was adequate for that purpose, if not ideal.

Do you think virtual hearings will be the norm in the future?

My best guess is that hearings by video conference will continue to be used particularly in low value cases with witnesses spread over large distances. I do not think that hearings by video conference are likely to be the norm in the future for most hearings.

Any other thoughts about conducting virtual hearings?

It is very important to test the technology with counsel and the arbitrator(s) a few days in advance of the hearing to ensure that the technical setup will work for the hearing. The arbitrator should request counsel to make sure that all connections to witnesses are reliable and adequately provisioned.

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Resolution Roundtable is running a series with arbitrators that have conducted virtual arbitration hearings since the pandemic. The following is an interview with AAA-ICDR Arbitrator Judge Faith Hochberg:

Have you ever done a virtual hearing or video conferencing for an arbitration pre-pandemic?

All of my "virtual" hearings (which I call "Live hearing: remote access" in my Orders) have been post pandemic. Since early April I have done an arbitration summation oral argument via Zoom, and I just completed a full evidentiary arbitration hearing via Zoom.

What virtual platform did you use for your recent case?

I used Zoom. [Initially, the party that volunteered to do the "host" IT function wanted to use WebEx, but I learned shortly thereafter from an arbitration colleague that the WebEx platform is too choppy, and subject to frequent transmission problems. So I asked that the platform be changed to Zoom or an equivalent smoothly functioning platform.]

How long was the hearing? Did you take breaks?

The hearing was 5 very full days. Initially, I was so deeply engrossed in the testimony that I did not take enough breaks. When the parties started asking for "nature breaks", I realized that I needed to break every 90 minutes, approx. That worked fine.

Did you utilize the virtual breakout rooms?

I used them only for infrequent counsel-only conferences.

Did you require that you can see all parties visually?

Yes. I required that the parties confirm that all witnesses had cameras on their computers or tablets. One party volunteered to provide cameras to any witness who did not have one, although to my knowledge, that was not needed, because all had them.

Where all parties in agreement to go virtual or was some convincing necessary?

The parties were in agreement on the recent hearing that was held. I do have another arbitration hearing scheduled in the near future where one party objected.

If one party objected, how would you have handled that?

The Chair called the parties, with the full agreement of both wings, to inform the parties that the Panel was inclined to proceed via Zoom, because we could not identify any date where we were certain that I Live:In -person hearing could be scheduled. After hearing from both the consenting and the objecting party, the Chair permitted both to present their reasons in letter briefs, which the full Panel read. The Panel deliberated and decided that there were good and sufficient reasons to proceed via Zoom. We then entered an order stating the reasons.

Were the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties and Model Order and Procedures for a Virtual Hearing via Video Conference helpful?

We made these decisions before that Hearing Guide was issued, but having now seen it, I compliment the team that wrote it. It is fully considered, comprehensive, and easy to follow, and I think that it makes it easier for arbitrators to inform the parties that there is a good alternative to In-Person hearings. It is also less expensive, and I think that this type of hearing may continue even after the pandemic subsides.

Did you parties share documents/exhibits? How did that go?

My Order required the attorneys to ensure that each witness had advance copies (either electronic, paper, or both) of the exhibits intended for their direct testimony. For cross-examination, I permitted the cross-examiner the option of sending the exhibits in advance, or showing them to the witness via "screen share" during the hearing. We had one advance prep session with counsel to be sure that all of our screens could see the documents this way, because Zoom has different types of use controls depending on the type of device being used.

We had no problems with documents. Some witnesses viewed them on the hard copy they had gotten in advance; some viewed them via their own electronic version received in advance; and some viewed them via the screen share.

What was your experience determining the veracity of the witness via video?

I have absolutely no trouble determining veracity and sincerity via video. You can actually see faces better than Live hearings, because the cameras are close. While you cannot see much of the their bodies, that was not a hindrance. (I also understand that technology exists that will even solve this issue, but it is not yet in use in the US. The person who told me about the technology is an arbitrator in India, and he knew that this technology is being used occasionally in Japan.)

Do you think virtual hearings will be the norm in the future?

Yes, they will be "a" norm; to be considered along with the "in-person" model.

Any other thoughts about conducting virtual hearings?

Try It---It works; it avoids travel and health risks; and it provides a means of fairly resolving disputes without the need to all be in the same room.

The AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties states that "[a]ll counsel shall endeavor to speak one at a time and not while another is speaking, other than as may be required to interpose an objection to a question asked or to alert other participants of technical difficulties."

How would you recommend an arbitrator control this? Must counsel use a raise hand feature or chat feature to ask to speak? How should other disruptive issues be handled in a virtual hearing?

Please provide your thoughts/comments below.

How do mediators address the issue of attorney "overlawyering" a settlement agreement/memorandum once the parties have reached agreement in principle? Some attorneys manage to blow up settlements by insisting on negotiating the most minute detail during the documentation stage.

Please provide your thoughts/comments below.

Resolution Roundtable is going to run a series with arbitrators that have conducted virtual arbitration hearings since the pandemic. Our first Q&A is with AAA-ICDR Arbitrator Howard Edelman of New York who recently conducted an employment arbitration case.

Have you ever conducted a virtual hearing or video conferencing for an arbitration prior to the pandemic?

No.

What virtual platform did you use for your recent case?

Zoom.

How long was the hearing? Did you take breaks?

It took 8 hours and no formal breaks except to give parties time to caucus.

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?

It took some convincing.

If one party objected, how would you have handled that?

Not sure; might have required.

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 the parties share documents/exhibits? How did that go?

Not in this case. In a previous case I handled documents were shared and it was bit cumbersome but overall okay.

Do you think virtual hearings will be the norm in the future?

Yes, certainly to a greater extent than in the past.


Several years ago Arbitrator Ray Bender authored an article that was published in the AAA-ICDR's Dispute Resolution Journal entitled "Presenting Witness Testimony in U.S. Domestic Arbitration: Should Written Witness Statements Become the Norm?" This article was written long before the pandemic, but the points made are especially pertinent today in the context of virtual hearings. Among other benefits, written witness statements can shorten the hearing considerably by avoiding lengthy direct examination via questions and answers, because they limit lawyer questioning to cross-examination. To some extent, written witness statements also can cut down on the need for depositions.

Please see the following link for Arbitrator Bender's article:

Written Witness Statments Article (1).pdf


Stays of Discovery - What are your thoughts?

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How should a Tribunal handle applications for stays of discovery (and resulting postponements of hearings) based on counsel's inability to meet with clients in person to review documents and prepare for depositions?

Please provide your thoughts/comments below.

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