June 2020 Archives

Hybrid Hearings - What are your thoughts?


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When we begin to reopen and in-person hearings are an option, it is likely some hybrid methods will be utilized or considered. Would you feel comfortable with the Tribunal being virtual and parties/counsel/witnesses being in-person? If yes, what procedures/arrangements are necessary for hybrid arbitration hearings? Would it be better to have all participants virtual than to attempt a hybrid method?

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 Q&A with AAA-ICDR Arbitrator Kyle-Beth Hilfer:

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

Yes, I had done one virtual hearing in 2016, entirely via a video-conferencing platform under the control of one of the parties. At that time, one of the attorneys had difficulty connecting to the platform and had to connect via audio only. The Zoom platform the AAA is using now seemed more stable with easier connectivity, more functions. In addition, because it was not under the control of one party, Zoom seemed to level the playing field in terms of making both sides comfortable.

What virtual platform did you use for your recent case?

I did not mandate the platform. The parties selected the platform. They chose to use Zoom, administered by the AAA. We had a tech rehearsal about a week before to make sure everyone was familiar with the process and settings available to them. If the parties were to have chosen a different video platform, I would want it to be one that has security features that have been recognized by at least the American Bar Association and the AAA.

How long was the hearing? Did you take breaks?

We had a three day hearing, with the first two days being about 8 hours and the third day about 9 hours. To accommodate time zone issues, we commenced two of the three days at 11 a.m. and one day at 10 a.m. We took 10-15 minute breaks every 60-90 minutes and an hour lunch break.

Did you utilize the virtual breakout rooms?

Both the Claimant and the Respondent each used its own virtual breakout room. In addition, at one point, I asked Claimant and Respondent's counsel to convene for a meet and confer in a separate breakout room I had set up just for the parties' attorneys.

Did you require that you can see all parties visually?

Yes. I encouraged witnesses to shut off their view of themselves if it would distract them while speaking. (In normal conversation, one cannot see oneself, so it can be odd to watch yourself speak.) I required the witnesses to show me the rooms they were in to ensure they were alone and to show me their desks to ensure no papers were present. The court reporter was mostly not using video participation so as not to take up "real estate" on the Zoom platform, but she joined when she had questions. In future cases where I have expert witnesses attending the hearings, I will require that they use audio connectivity only unless it is necessary to see documents, again to preserve real estate.

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

In this particular case, both parties were amenable immediately to a video hearing. In two other cases, the discussions were not so smooth.

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

In other cases currently before me, the parties were not in agreement about using a video hearing. One side wanted it; one side did not. In one case, we had a lengthy status hearing in which we discussed the potential delays that were likely without a video hearing. The objecting counsel's client was present on the status hearing call, and I believe that helped to lead to eventual consent. In another case, one party would not consent to a video hearing, but it was not able to articulate a convincing reason why the video hearing would be prejudicial. In addition, the party requesting the video hearing had some convincing reasons why delays could be detrimental to their business. I ordered the video hearing and drafted an order explaining my rationale for a video hearing and enumerating some relevant procedural history that justified a video hearing in that case. I also gave work-arounds in my order for technical concerns that were particular to that case. I also allowed the parties to choose their video platform. (They ultimately chose Zoom, administered by the AAA.) If, however, both parties in any matter want in-person hearings, even if it means delay that cannot be quantified (such as during a pandemic), I would not order a video 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 distributed this information to the parties in advance of making the decision to go with a video hearing. The parties largely adopted the model order with some changes by them and by me. Having run a video hearing in 2016 before these materials had been written, I can attest to their usefulness. They contributed to a completely successful video hearing.

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

The parties relied on Zoom's screen-sharing function. In this particular case, many of the exhibits were lengthy excel spreadsheets. The witnesses did not have hard copies of the exhibit binders with them. I, as the Arbitrator, did have the hard copies, although spreadsheets came to me electronically. The screen-sharing function actually enhanced everybody's ability to read the documents. The parties' counsel could manipulate and filter the spreadsheets in front of everybody. The font could be enlarged for all to see. In addition, because the witnesses were using the screen-sharing function to see documents, I could see their faces at all time. As the Arbitrator, I made sure to use Zoom's dual monitor function. This setting allows the screen share to show on a second monitor while keeping the Zoom participants faces on the main monitor. I encouraged all the participants to use this setting too to the extent they had two monitors. The screen-sharing was also useful to avoid having to email last minute documents and allow the hearing to proceed expeditiously (with emails of the documents coming later in the evening.)

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

I had no trouble determining the veracity or the credibility of witnesses via video. In fact, because of the close camera view, in some ways, micro-expressions were more visible. Of course, I use multiple factors to judge veracity and credibility, not just a person's appearance or demeanor during testimony. One of the witnesses was a bit soft-spoken, but I believe it would have been more difficult to hear him in a live hearing where I could not boost the volume. In addition, the "pin" video function allowed me to zoom in on him visually to enhance his testimony. I note that in this hearing, we did not record the testimony. Replaying testimony could be a useful adjunct to judging veracity in cases where a recording is used and available.

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

Yes. There is a learning curve, particularly for the advocates, but I think once advocates leave their comfort zone, they will see that video hearings can be fair, effective, efficient. They certainly are becoming the norm during the pandemic because the alternative is unnecessary delay. Post-pandemic, I believe video hearings will still be useful and preferable for some cases. In cases where parties are involved with a multi-day hearing with participants from different locations, video hearings could result in substantial financial savings. At the same time, video hearings pose no threat to fair, impartial, and thorough adjudication. I also believe video hearings may serve a useful function in the preliminary stages of the case. In the future, I will conduct via video at least the initial preliminary hearing and status hearings concerning motion practice. Simpler status hearings can still be conducted over the telephone. Using video technology early in the case would acclimate counsel in the event the parties decide to use video hearings for the main hearings.

Any other thoughts about conducting virtual hearings?

Be prepared for technical mishaps. Have a backup plan in the event connectivity is lost. In addition, the advocates need to understand that it is crucial to speak one at a time on the Zoom platform. If advocates continue to interrupt, however, Zoom's "mute" feature is a benefit. In a live hearing, the Arbitrator can remind people not to speak over one another but cannot ask them to mute. On a video hearing, it can be an effective tool if the parties' counsel are advocating a bit too zealously so as to interrupt the flow of testimony or discussions with the Arbitrator.

How might mediators ensure mediation confidentiality in the virtual dispute
resolution environment?

Please provide your thoughts/comments below.

Partial Summary Judgment - What are your thoughts?


Respondent in a commercial arbitration requests permission to file a motion for partial summary judgment. The request is based on the theory that if the Arbitrator finds for Respondent on one count, then the other counts by necessity must fail. Claimant retorts that 1.) the other counts do not necessarily fail; 2.) the same evidence must be heard at arbitration and so the grant of the requested dispositive motion would not promote efficiency. While both sides have cited case law in the arguments for and against the request to file this dispositive motion, there are still legal arguments to be briefed on the substance of the motion. On the other hand, if the Arbitrator were ultimately to grant the motion, such a decision would not alter the substance of evidence to be presented at hearings or shorten the hearings in any substantive way. Respondent also argues that clarity of this legal issue would help facilitate settlement discussions.

Should the Arbitrator allow the motion to be filed to consider further the legal arguments? Or should the request to file fail solely on the basis that granting the motion would not alter the hearings and promote further efficiency? Is the facilitation of settlement discussions an appropriate factor for the Arbitrator to consider?

Please provide your thoughts/comments below.


Can arbitrators order that they will decide the case on the existing record of written witness statements, expert reports and documents, without an evidentiary hearing (whether in person or virtual), on the ground that they believe there are no material facts that can fairly be disputed, even though one or both parties have requested an evidentiary hearing? If neither party has asked the arbitrators to decide the case on the existing record and without an evidentiary hearing, can the arbitrators nevertheless proceed on their own motion to resolve it based on the existing record? The analogy would be to a summary judgment motion that the court itself made, and not the parties.

Please provide your thoughts/comments below.

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