While courts work through jury trial procedures that comply with social distancing requirements, arbitration proceedings can continue virtually with proper preparation and leadership by arbitrators.
Three months ago, social distancing was what teenagers do to their parents. Now, it is a safety issue in our lives. The following best practices should allow arbitrators and the parties to get their arbitrations back on track while we continue to deal with COVID-19.
Setting the Rules of Play
For arbitrations to maintain its reputation as a viable alternative dispute resolution process, arbitrators must lead in using the virtual platform and assist in planning a process so clients will respect the outcome. The arbitrator should assist the parties to draft an agreed order based on the following deal points:
- The virtual platform to use;
- Confirmation the parties understand the features and risks of the platform;
- Will the proceeding be recorded – audio and/or video – by the virtual platform;
- If the recording will be used as the official record of the proceedings;
- How the recording will be handled after the proceedings, i.e. will it be destroyed or provided to the parties;
- If the parties can personally record, take snapshots/screenshots or otherwise “capture” the proceedings;
- Will counsel be with clients during the virtual proceeding; and
- Confirm that all parties, clients, and witnesses will agree to these terms and sign an agreement to these terms.
Plan for the Unexpected
Arbitrators must take the lead in limiting the technical issues that could undermine the proceedings and the ultimate award. If arbitrators are not able to utilize the virtual platform, it could negatively impact their credibility with the parties. The following tips can assist in creating a more organized and efficient virtual hearing:
Schedule a Technical Pre-Hearing Meeting: Two weeks before the hearing, arbitrators should meet with counsel and confirm that the parties and witnesses will have the best audio and video quality at the hearing Arbitrator should confirm:
- Parties are comfortable with platform
- Witnesses have viable internet connection
- No time lags
- Proper lighting
- No audio feedback or video glitches
- Circulate conference call number in case of poor audio or video quality
Introduction the Evidence
During the Technical Pre-Hearing Meeting, parties should advise the arbitrator how exhibits will be presented. Here are some suggested alternatives:
- Old School: Parties provide arbitrator and witnesses with a hard copy of joint exhibits. The exhibits can be delivered in a sealed container that the witness can open live at the beginning of their testimony.
- New School: Parties agree on using a shared virtual drive, i.e. cloud server, so parties and witnesses can view exhibits on their computer or another previously approved device that has telephone, text, and e-mail capabilities disabled.
With either option, counsel should be prepared to use the platform’s share feature and present the exhibits. For exhibits that are objected to, the sponsoring party should only share the exhibit after a ruling has been made on the record.
Foul! Preserving the Record
Prior to the hearing, counsel and the arbitrator need to confer regarding all objectionable, anticipated testimony or documentary evidence so the hearing will be more efficient. For rulings that can only be made during the live evidentiary presentation, a best practice is for the objecting party to: (1) inform the arbitrator what the potential objectionable testimony is before the sponsoring witness testifies; and (2) unmute his microphone during potentially objectionable testimony to timely assert the objection. Do not rely on the platform’s raised hand feature alone to object.
Maintaining A Level Playing Field
It is imperative to the veracity and credibility of the proceeding that the arbitrator must actively confirm that no counsel, party, or witness takes advantage of the virtual nature of the proceedings. Arbitrators should incorporate these best practices and confirm the parties’ knowledge of these rules of engagement.
- Provide a Virtual Hearing Integrity Checklist outlining the ethical expectations of the proceedings.
- Parties must submit witness lists two weeks before the hearing. The arbitrator will provide a confidential link/dial-in information to the parties and its witnesses only. It should not be forwarded to anyone.
- Witnesses must be sequestered in virtual break out rooms.
- During breaks, counsel is required to advise upcoming witnesses when they will testify and have that witness “escorted” into the witness breakout room at a designated time and wait there until called to testify.
- Witness should sit at a desk or table with their back facing a wall, like in a deposition.
- Witness should be prepared to show the arbitrator his surroundings and confirm what documents he has with him.
- Arbitrator will disable the chat function on the virtual platform.
- Witness must confirm that all other electronic devices are turned off so no phone calls, e-mail, or text messages can be sent or received during testimony.
- Witness will confirm whether there are no unauthorized persons in the room who can hear or view the proceedings. If so, he must disclose this person and why their presence is necessary.
- Sponsoring counsel will not attempt to communicate with witnesses during testimony via chat, text, e-mail or any other means, including breaks.
- Arbitrator will instruct witnesses that it is improper to record or capture images from the arbitration proceeding.
Virtual proceedings will take longer than in-person proceedings. Here are some best practices to make the virtual hearings as efficient as possible:
- Clients and counsel should arrive to the virtual hearing room 30 minutes early to make sure there are no technical glitches and to handle any business before witnesses join.
- Set the schedule when the parties should plan for recesses and the lunch break
- Use break times to confirm witnesses have been escorted to breakout rooms so there is no delay to track down witnesses
- Do not disconnect from the proceedings so there is no delay to reconnect.
- The parties will need to be flexible with technical delays, particularly involving witnesses who have technical issues and their testimony must be rescheduled.
Overtime: Making the Most of Virtual Arbitrations
- Anticipate more time to prepare.
- Schedule additional prep time with witnesses so that your evidentiary presentation flows.
- Check your witness’ surroundings before the hearing day to make sure lighting and set up is appropriate for a legal proceeding,
- Deal with any evidentiary issues prior to evidentiary presentation so those issues are not handled in front of clients and witnesses
- Consider having a quick run through of the platform with the arbitrator and counsel before the actual proceeding.
- Develop a communication plan with clients if you will not be in the same room.
- Practice sharing your screen and make sure no other browser windows are open that could show confidential or personal information.
In conclusion, leaders lead. In these tumultuous times, arbitrators must instill procedures that maintain the credibility of arbitration proceedings.
Amy M. Stewart is a certified arbitrator with the American Arbitration Association and FINRA. In addition, Amy serves as an advocate for companies in arbitrations involving commercial, labor, and employment issue.