November 2020 Archives

By Julie G. Hopkins and Daniel Urbas

An excellent paper released yesterday (November 27th), entitled "Virtual Practice Makes Virtually Perfect - Practical Considerations for Virtual Hearings Identified through Simulations with Experienced Counsel and Arbitrators".

The paper presents lessons learned from a series of virtual hearing simulations conducted between May and October with the involvement of, and cheerful contributions of skill/time made by, leading arbitration/advocacy professionals from across North America.

To download the complete paper, see the following Virtual Practice Makes Virtually Perfect Julie G. Hopkins and Daniel Urbas November 27 2020.pdf.

Julie G. Hopkins is an independent arbitrator based in Calgary, Alberta and a member of Calgary Energy and Commercial Arbitrators.

Daniel Urbas is an experienced litigator, arbitrator and mediator and active member of Québec, Ontario and B.C. bars.

As an arbitrator, mediator, and/or counsel, how have you addressed your own obligation to increase diversity in ADR? Have you mentored or sponsored a diverse neutral or advocate? Have you asked a diverse neutral or advocate to speak with you on a panel? Have you selected or recommended a diverse neutral for a mediation or arbitration? Please provide in detail what you have done and what more can be done by our ADR community.

Please provide your thoughts/comments below.

Thank you to the Laura Kastor, Chair of the Section of Dispute Resolution of NYSBA, for this week's thoughtful question.

Rekha Rangachari, Executive Director of NYIAC, runs a weekly Around Town: Upcoming Events in International Arbitrations Message. We at the Section of Dispute Resolution of NYSBA greatly appreciate her thoughtful messages to our ADR community worldwide and will begin running them weekly in this blog. The Section is a proud Founding Organization of NYIAC.

Dear Friends,

It's T-1 day until the U.S. Thanksgiving holiday. Admittedly, it's a different coming together this year, ever-conscious of pandemic limitations ... and even wavering pandemic waistlines. (NB: Answers to Every Possible Pandemic-Thanksgiving Question.) As you consider what to eat and drink (cooked, ordered, or hybrid), allow me to offer my thanks to you, our international arbitration community. Each of you is a lifeline, a poet, a wearer or many hats, and it doesn't go unnoticed.

Since Mid-March, each has actively responded to the global crisis -- e.g., moving family and workstation(s), balancing work-load, home-load, and the myriad emotions that permeate each day anew, all while staying "present" in virtual in parallel with staying remote (mediations, hearings, conferences, etc.). Let's be honest, we've been running all things in parallel for a very, very long time. There is no deadline (yet), but promising vaccination news to come for Q1 2021.

If you find a moment to exhale, and therewith read, I post below a few options:

- The New York Times' The 10 Best Books of 2020;

- How to Be a Poet (To Remind Myself) by Wendell Berry, as we are each poets of different styles;

- The Economist's The History of Globalization in the Steam Age; and

- The Atlantic's What I Saw as a 2020 Census Worker.

Also, Netflix's The Queen's Gambit is a binge-worthy experience, similar to The Crown (Season 4).

Please don't hesitate to write if NYIAC or I can help. We're stronger together. Let's have a colloquy.

Warmly yours,

Rekha

Upcoming Events in International Arbitration

What if both parties to an arbitration request that an institution prepare a listing of all potential arbitrators from one specific race or gender? How should an institution handle such a request? What if only one party wants a listing by one specific race or gender and the other does not?

Please provide your thoughts/comments below.

Has the virtual/video arbitration hearing world changed how we look at venue within arbitral proceedings? Should future contracts address the potential for virtual/video hearings? How then should that be drafted in conjunction with venue and seat?

Please provide your thoughts/comments below.

The term arb-med-arb refers to a process during the conduct of an arbitration where the case is referred to an independent mediator not affiliated with the arbitration for mediation, usually after there has been an exchange of briefs and some amount of discovery has been taken. This occurs by that time the issues and their relative strengths and weaknesses should be known to the parties If the mediation is unsuccessful, the case goes back to the Tribunal and the arbitration continues, but if the mediation results in a settlement of the case, it will save the parties time and cost. In addition, because the result is agreed upon, it may produce a result that leaves both parties reasonably satisfied, rather than one party being the winner and the other the loser. Rarely, however, is this process expressly included in the parties' arbitration agreement, and so the question is how can this process be set up during an arbitration. One issue is who should initiate the move to mediation? While counsel or the tribunal may suggest or recommend that the case be referred to mediation, it is likely that counsel and the tribunal will be vested in the arbitration and may be reluctant to lose control over it, albeit temporarily if the mediation is unsuccessful. If the arbitration is administered, the arbitral institution is the most likely source for initiating the move of the arbitration to mediation. At the outset of the arbitration it could indicate to the parties, counsel and the tribunal that if it determines that the case is appropriate for mediation, it will suggest or recommend a referral to mediation. A second issue is who selects the mediator? Again, if the arbitration is administered, the arbitration institution would be the logical choice based on its experience in selecting emergency arbitrators. The mediation process itself should be rather short -- there would have to be enough time to select the mediator, and the mediator would have to check conflicts and come up to speed, but that should not take more than a week or two, and the mediation itself could be limited to just a couple of days, so if properly structured, the referral to mediation should be palatable to the parties, their counsel and the Tribunal. Your thoughts on the feasibility of this process will be appreciated.

Please provide your thoughts/comments below.

Thank you to Arbitrator/Mediator Peter Pettibone for this week's blog question.

An interview of Rekha Rangachari and Kabir Duggal appearing in Litigation & Alternative Dispute Resolution 2020, a publication by Financier Worldwide:

RRangachari KDuggal Extract.pdf

What are the best practices for arbitrators when asking a few questions of a witness?

Please provide your thoughts/comments below.