How Did Your Virtual Arbitration Hearing Go? A Q&A of an arbitrator that conducted a virtual hearing since the pandemic

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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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This page contains a single entry by Jeffrey Zaino published on July 11, 2020 1:15 PM.

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