June 2020 – James Hosking and Marcel Engholm Cardoso recently wrote an article about things to consider when participating in virtual arbitration hearings. Publication of the article is forthcoming in the New York Dispute Resolution Lawyer, Summer 2020, Vol. 13 No 2, a publication of the New York State Bar Association Dispute Resolution Section. The full article is available below.
It is not uncommon for portions of arbitrations to be held “remotely,” i.e. without all participants being in the same room. For years, procedural conferences, oral arguments and some witness testimony have been conducted using telephones and video platforms. But it has taken the COVID-19 pandemic to cause us to hold entire hearings remotely and, given social distancing restrictions, to do so where all participants (arbitrators, counsel, witnesses, court reporters, etc) are attending remotely. Necessity is the mother of invention.
Although not always known for being enthusiastic about change, this is one innovation lawyers should embrace. There are undoubtedly benefits to remote hearings: reduced travel (with its cost, jetlag and environmental impact); potentially fewer calendar restrictions; and ideally more streamlined arguments. After all, our clients have been negotiating and closing complex deals remotely for years. But not all cases are suited to being held remotely. Arbitrators should carefully consider whether a remote hearing is appropriate and, if so, devise the best procedure to ensure it runs smoothly and fairly.
This article suggests some practical aspects of conducting a remote hearing—whether as arbitrator or counsel—that should guide one in deciding whether, and how, to proceed remotely. But the note is not intended to be prescriptive. Importantly, remote hearings offer a fresh opportunity to all participants to re-think what procedures may best meet the specific needs of the case.
I. Technological Considerations
The two most fundamental issues are the technological set-up and the choice of video platform.
(a) The Technological Set-Up
Whether as counsel or arbitrator, the practitioner should have enough devices to (a) see all participants; (b) hear the participants and any required interpretation; (c) see documents the parties project on-screen, as well as access soft copies of the record; (d) have a live-transcript feed; and (e) have an open line of communication with immediate colleagues. All of this could be accomplished with a single laptop. However, some additional equipment can vastly improve the experience.
The preferred set-up would have a separate screen or device for each of the aforementioned components, as seen in the following photograph.
Thus, in addition to a laptop screen, consider using an external larger screen or smart TV to see video feeds, a tablet to access documents or see the live-transcript, and a phone with a text message or WhatsApp group. Video quality can be improved by using a computer with a powerful graphics card, as well as an external HD camera. Using a headset improves audio quality and can be particularly helpful when separate audio channels are used for the witness and live interpretation. The headset may have a built-in microphone or, if possible, use an external remote microphone—do not rely on a laptop. Finally, a continuous and fast internet connection is essential. Rather than connecting to a wi-fi network, if possible, use a direct ethernet connection.
(b) The Platform
There are multiple products providing video-conference services, such as BlueJeans, Cisco WebEx, Microsoft Teams and Zoom. Consider whether the platform addresses the needs of the particular case, which may include (a) whether it supports the required number of attendees; (b) does it allow an additional channel for interpretation; (c) whether it allows for parallel break-out rooms; (d) and if it permits live presentation of documents, among others. Check carefully the security protocols available, bearing in mind that some countries, institutions or companies may have specific security needs. For institutional arbitrations, a decisive factor may be which platform the institution is familiar with and whether a tribunal secretary or case manager will be able to assist with logistics. In this respect, there is a wealth of knowledge amongst institution staff who have seen what works and what does not.
Importantly, access to the platform should be obtained early to allow everyone to get familiar with its operation. Whether arbitrator, counsel or witness, conduct a mock hearing to ensure you are fully prepared. Do so with enough advance time to remedy any problems.
II. Considerations for Arbitrators
Technological challenges make early planning even more important than in an in-person hearing. A comprehensive protocol, whether agreed or ordered by the tribunal, is essential to ensuring the hearing runs smoothly. Consider addressing the following.
In addition to these issues that may appear in a procedural order, consider how the arbitrators will attend the remote hearing and how deliberations will be conducted. The arbitrators might be able to sit “together” in the same location with social distancing precautions. If not, schedule regular breaks with a secure audio/video line to be able to discussing issues timely. In addition, many arbitrators use email, messaging or WhatsApp to allow real-time comments on pressing issues.
III. Considerations for Counsel
Remote hearings should not just duplicate an in-person hearing. Consider some of the following unique challenges, opportunities and strategies.
IV. What other resources are available to help?
As initial fears about remote hearings have faded, their use has become almost common place. Of course, the real test will arrive once the public health emergency abates and in-person hearings become a more viable option—the authors are confident that remote hearings (especially when not constrained by social distancing) will remain an important part of the arbitration scene. In the meantime, there are a number of excellent practical resources available to aid arbitrators and counsel (many of which are collated on the NYIAC website). These include:
Publication forthcoming in the New York Dispute Resolution Lawyer, Summer 2020, Vol. 13 No. 2, a publication of the New York State Bar Association Dispute Resolution Section.
 Image used with the kind permission of Patricia Saiz González. Email: email@example.com
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