July 2020 Archives

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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.

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Sample Procedures for the Holding of the Hearing by Video Conference

Prepared by AAA-ICDR Arbitrator Steven Reisberg, Partner at Chaffetz Linsey, LLP

Procedures for Video Hearing.DOCX

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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?

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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.

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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.

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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.

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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.


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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.

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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.

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NYSBA 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 Eric Holtzman:

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?

Zoom.

How long was the hearing? Did you take breaks?

3 - 4 hours Yes, one break.

Did you utilize the virtual breakout rooms?

Not in the arbitration but I have done a mediation where break-out rooms were utilized.

Did you require that you can see all parties visually?

Yes. And witnesses while they testified.

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

Yes.

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

Not applicable.

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

Somewhat.

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

Exhibit notebooks (hard copy) were prepared and exchanged before the hearing

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

It was easier than I expected it to be.

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

To some extent and, definitely for witnesses or parties far from the hearing locale.

Any other thoughts about conducting virtual hearings?

I had great trepidation about the process and whether I would be skillful enough to use the technology. Most of my concerns proved to be unfounded.

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NYSBA Resolution Roundtable blog 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 Judge Shira Scheindlin:

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?

6 days. Yes - 3 days; 1 day; 2 days

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?

Some convincing was necessary.

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

If one party wanted to proceed and felt that it was entitled to a prompt decision, I would have held the arbitration virtually and told the objecting party that if it did not participate the hearing would nonetheless proceed and an award would be issued.

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?

YES. They used a junior associate at one of the firms to handle the documents for both sides.

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

Same as in any other arbitration proceeding (or court proceeding). Not different at all.

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

No. I think most arbitrations will be live if at all possible. The opposite is true for mediations.

Any other thoughts about conducting virtual hearings?

Trial runs are essential. Tutoring in screen sharing and use of breakout rooms also essential. The court reporter was experienced with virtual mediation, produced a real-time transcript throughout the proceeding which was also helpful.

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The NYSBA Resolution Roundtable blog is running a series with arbitrators that have conducted virtual/video arbitration hearings since the pandemic. The following is a Q&A session with AAA-ICDR Richard Mattiaccio:

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 - 3 cases

How long was the hearing? Did you take breaks?

One case was international with 8 consecutive weekdays and participants from China to the US (West Coast, Texas, and US East Coast) to the UK; a second was a one-day completion of a hearing that had gone forward in NYC in February 2020 with witnesses in Ireland; and the third was a domestic US commercial case, 7 consecutive weekdays with bi-coastal participants.

Generally we went no more than six hours of on-record testimony and colloquy per day, with one 15 minute break mid-morning, a 15 minute break mid-afternoon, the occasional combined tech failure/bathroom break for 5-10 minutes, and a lunch break that varied from case to case. Time differences in the international cases made it necessary to have an early start and a short lunch break. In the 7-day domestic US case the parties preferred a 90-minute lunch.

Did you utilize the virtual breakout rooms?

Yes, frequently but we also had back-up conference numbers that we used from time to time when the meeting wasn't open.

Did you require that you can see all parties visually?

When there were many participants (35+ in the 8-day case, 20+ in the 7-day case), the parties and panel agreed that each side could have two counsel on screen at any given time. Adding the testifying witness and the panel, that made for 8 people on screen, which was manageable. Corporate witnesses were invited on screen to introduce themselves and then did not re-appear except to testify.

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

In the 8-day and 7-day cases, the parties proposed going virtual. For the one-day completion of hearing, some convincing was needed.

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

I treated it like any other application or motion: hear the parties out and then decide it. The objecting party's concerns were taken into account in drafting the virtual hearing order.

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?

Yes. Screen-saving worked very well, provided you had a second screen to which the documents defaulted.

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

This is a red herring. If anything, it's easier to assess a witness with a close-up camera and no room distractions.

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

I think hybrid (virtual-in person) hearings will become the norm to keep travel costs down by having less essential witnesses and support lawyers and staff participate remotely.

Completely virtual hearings may become the norm in lower-stakes cases, as a function of cost-benefit analysis. I don't think all-virtual will become the norm in high-stakes cases but it will be considered a viable option in cases where the time factor is really important and getting everyone into the same room will result in significant scheduling delays.

Any other thoughts about conducting virtual hearings?

Counsel, or the meeting hosts, need to pay more attention to the equipment, connectivity, and room conditions of third-party witnesses who can be too casual about their obligation to cooperate.

I think the panel should enforce the 360-degree view provision consistently, either by requiring it for all witnesses or letting the parties know in advance that the panel will require it only if counsel asks for it. To avoid the chilling effect, for example on third-party witnesses, I would discourage counsel from agreeing to record the proceedings other than in the usual manner, i.e. the stenographer and stenographer's audio tape.

The real burden of conducting virtual hearings is on counsel, not on the arbitrators, and this is especially true when it comes to preparing witnesses and presenting oral witness testimony on direct, particularly when there are language and cultural differences. However, the myth about cross-examination needing to be in person to be effective is just that .. a myth. Evasive witnesses come across as evasive on Zoom as much as they do in person. Maybe more so.

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NYSBA Resolution Roundtable blog is running a series with arbitrators that have conducted arbitration hearings since the pandemic. The following are the responses to a Q&A by AAA-ICDR Arbitrator Stephanie Cohen:

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

Not a full hearing, but there are several occasions when I have had a witness testify by videoconference because of special circumstances (e.g., inability to travel because of health, length of testimony was expected to be very short, etc.)

What virtual platform did you use for your recent case?

Zoom, hosted by Arbitration Place

How long was the hearing? Did you take breaks?

11 days, with the first 9 taking place consecutively but for the weekend, and the last 2 taking place about 2 weeks later. We generally scheduled 1.5 hours for lunch and took one short 10-15 min. break in each of the morning and afternoon, in addition to occasional breaks when changing witnesses, before commencing cross, etc.

Did you utilize the virtual breakout rooms?

Yes

Did you require that you can see all parties visually?

At the outset of each hearing day and after the lunch break, everyone attending turned on their cameras for a visual roll call. Thereafter, it was agreed that only key participants (arbitrator, witness, lead counsel, and some party representatives) would leave their video on. Occasionally, someone joined only by phone, in which case I asked them to speak and verbally identify themselves. The hearing technician alerted me to anyone coming or going and additional checks were made as necessary.

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

One party objected.

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

After written submissions and oral argument, I issued a written decision addressing my authority to convene a virtual hearing and my reasons for determining that in the circumstances of that particular case: (i) it was appropriate to convene the evidentiary hearing via videoconference; (ii) the technology would afford the Parties a fair and reasonable opportunity to present their cases and would not prejudice or disadvantage either Party over the other; (iii) postponing the hearing would risk excessive delay; and (iv) reasonable steps could be taken in advance of the hearing to anticipate and address any concerns about the use of videoconferencing technology to ensure the fairness and integrity of the proceedings.

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 published a model Zoom order prior to issuance of the AAA-ICDR Virtual Hearing Guide, so used that as my basis. The two are substantially similar, except that the AAA-ICDR version added a complete copy of default Zoom settings. I thought that was a good idea so adopted it (instead of merely identifying Zoom settings and features to be adjusted in the text of the order). This was particularly important because we were working with a hearing technician, so it made it easy for them to confirm they had implemented the settings as requested. At the same time, since neither my original model order nor the AAA-ICDR procedures include specific provisions relating to use of a hearing technician, I found that there were some additional tweaks to be made and protocols to be worked out to make for a seamless hearing - which it was, thanks to all of the preparation!

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

Yes - it went very well. The hearing technician was provided all exhibits and witness statements in advance and they were displayed in Adobe or Excel over Zoom. Demonstratives and one or two missing documents were e-mailed to the hearing technician on the fly.

To facilitate quick and easy retrieval of exhibits, they were grouped into bundles with page numbers as well as electronic bookmarks for each exhibit. All of the expert witnesses (but not fact witnesses) were permitted to have their own, clean copy of their materials as they were voluminous and it made it easier for them to look at data tables and locate schedules quickly. I pulled up my own copies of the exhibits using PDF Expert on my ipad (and, where necessary, excel on my laptop) so that I could easily annotate them and integrate them into my notes.

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

I think the video worked well. In many ways, I had far better visual views of the witness and others in the "room" reacting to the testimony than I do during the typical in-person hearing. Also, oral testimony was only one piece of the puzzle. This was an international arbitration in which written witness statements had been exchanged in advance, so those statements and contemporaneous documents also had a bearing on assessments of truth and credibility.

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

In the short term, as we continue to weather the COVID-19 pandemic, we will see more "hybrid" hearings where some participants are in the same physical location and others connect by video. As we emerge from the crisis, video hearings are unlikely to be the norm, but they can and should remain in the arbitrator's toolbox.


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If you conducted a virtual/video arbitration hearing, we want to hear from you. The New York State Bar Association Resolution Roundtable blog is running a series with arbitrators that have conducted virtual/video arbitration hearings since the pandemic. If interested, kindly respond to the below Q&A.

Virtual Hearing Questions.docx

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How should a mediator handle a mediation where one side is clearly one-hundred percent correct in the positions they are asserting, from a legal perspective, and the other side has no possible avenue to prevail, if the case does not settle. What are the arguments the mediator should use to get the side that is right to compromise to reach a settlement, other than avoiding the cost of litigation?

Please provide your thoughts/comments below.

Zoom/Virtual Fatigue - What are your thoughts?

| 14 Comments

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Does Zoom or virtual fatigue really exist when conducting arbitration/mediation proceedings? Have you experienced this as an advocate or neutral? How many breaks would you suggest and how long can a proceeding go? Does it help to have the video of yourself turned off?

Please provide your thoughts/comments below.

About this Archive

This page is an archive of entries from July 2020 listed from newest to oldest.

June 2020 is the previous archive.

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