Arbitration during a global pandemic

Traditionally, arbitrations, like trials, involve having all parties, attorneys, witnesses and arbitrators present together in the same room. COVID-19 has changed that. Platforms such as Zoom are being used more and more to conduct remote arbitration hearings. As this migration continues, counsel must be mindful of some “best practices” related to remote arbitration hearings. This article outlines a basic checklist designed for the convenience of counsel in furtherance of their meet and confer obligations in anticipation of scheduled remote arbitration hearings.

Platform Selection and Schedule Development

First, parties must identify a platform (e.g., Zoom) which will be the presumptive platform used for the arbitration hearing, absent any other orders by the arbitrator. The platform must provide (a) robust confidentiality protections, (b) high-resolution video and quality audio of participants, (c) a function to enable subgroups of participants (e.g., claimants or respondents and their attorneys) to meet by themselves during recesses, and (d) an option which enables participants to display documents on the screen, allowing a cursor to point to selected portions of the document without completely obscuring the video images of the other participants.

It is important to clarify that the use of one platform for the arbitration hearing will not foreclose the option to use different platforms (e.g., Microsoft Teams) for concurrent communications within litigation groups.

Counsel for all parties should develop a written schedule of the days to be reserved for opening statements (if any), testimony and closing arguments. The coordination of all participants in a virtual hearing is far more complex than in an in-person hearing, so it is even more important that parties jointly develop and present to the arbitrator, a schedule for each hearing day which identifies which opening and closing statements will be made, whether depositions will be played or read (if applicable), and each witness that will be called to testify. This schedule should be provided to the arbitrator no less than two business days before the commencement of the hearing, and changes should be made only by the agreement of the parties or by the arbitrator for good cause.

Preparation for Remote Hearing

All participants in the proceeding must test the compatibility of their individual equipment (e.g., laptop, desktop, webcam, headphones) with the platform. Attorneys and witnesses must also ensure that their individual devices’ screens measure more than 12.5 inches diagonally, and that all devices are adequately charged and have backup batteries, if needed.

Each participant is responsible for ensuring that the place where they will be joining the hearing from is not a public place offering unsecured, public Wi-Fi. The location must be private and have adequate internet bandwidth to support the use of the agreed upon platform without interruptions. Participants should ask others sharing the internet connection with them to defer streaming movies or games on other devices at the location, even if in separate rooms, during the time the hearing is taking place.

In addition, each participant must (a) locate their webcams so that they appear well-lit against a neutral, non-distracting background with no backlighting or virtual backgrounds, (b) make best efforts to ensure clear video and audio transmission during the hearing, and (c) take appropriate steps to minimize disruptions and eliminate background noise during the hearing. To the extent possible, webcams should be positioned at face level, relatively close to the participant.

Counsel must ensure that all witnesses called by the party whom counsel represents are familiar with the platform and have suitable equipment to participate in the proceeding without delays attributable to inadequate familiarity with the platform or inappropriate equipment. If necessary, the party calling a witness should take reasonable steps to ensure that the witness is able to properly participate in the videoconference; such steps may include lending sufficient equipment to the witness (e.g., two laptops or equivalent) for use in the proceeding. Counsel for the party calling the witness may also want to consider conducting a test session with the witness in advance of the hearing during which the witness practices the use of both the platform and the process to view any electronic exhibits.

If counsel is looking to utilize exhibits during direct examination of a witness, they should send the exhibit, in hard copy or electronic form, to the witness at least 24 hours before the witness is to commence testimony, so that the witness can review the exhibit and have ready access to it during the examination. If such access is to be effected through displaying the exhibit on a screen, counsel for the party that has called the witness must ensure that the witness has two screens available so that the witness can see and hear the arbitrator and counsel on one screen while reviewing the exhibit on the second screen. Additionally, at least 24 hours in advance of when a witness is to be called for testimony, counsel calling the witness must provide to opposing counsel any documents that the witness will have before him or her during the testimony. Similarly, any counsel or other person who sends an email or other communication to a witness during that witness’ testimony must simultaneously copy opposing counsel on that communication. Note, however, that while awaiting a witness’ testimony, counsel may not communicate with the witness electronically or otherwise on any matter connected with the subject matter of the testimony, whether the communication is concurrent with the testimony or during breaks. The only exception to this is communication with a represented party-witness, and even then, it is only permitted during official recesses, in direct and re-direct examinations, and not cross-examinations.

Importantly, because technical complications could affect the reliability of an audio transcript of the hearing, and to prevent such a recording from being obtained by non-participants, counsel must ensure that all participants are aware that no one is allowed to record any part of the hearing without the advance, written authorization of the arbitrator. However, parties may choose to share the expense of providing a certified court reporter to record and transcribe the hearing. If they choose to do this, the parties must furnish to the reporter the names of all counsel, witnesses and persons, places or things likely to be frequently mentioned as well as a glossary of any technical terms or abbreviations expected to be used, prior to the hearing.

To expedite the remote hearing, counsel are encouraged to consider any of the alternative methods of evidence presentation commonly used in in-person hearings to achieve efficiencies. Options include submission of all or part of the case on paper with argument, submission of lay or expert deposition testimony, submission of written closing arguments following the hearing, and any other agreed-upon, time-saving procedures. A stipulation of facts and law alone, for example, may eliminate the need for extraneous time-consumptive testimony. To avoid unnecessary delays, attendees should refrain from disconnecting from the hearing during any recesses. While lines may be muted during such times, and the arbitrator may move participants to small “breakout” or “waiting” rooms, all attendees shall remain connected for the entirety of the hearing.

To facilitate communication during the proceedings, the arbitrator, counsel and certain participants should be prepared to share cellphone or “back line” telephone numbers, in the event of unplanned interruptions of service. To enable the moderator’s performance of these functions, counsel for each side should complete and send to the case manager and opposing counsel a list of hearing participants form which lists names, emails, cellphone numbers and the dates on which individuals are expected to attend the hearing. Witness emails and cellphone numbers should, of course, be deleted from the copy sent to opposing counsel. Moreover, it is recommended that counsel create “all-participant” email chains for emergency communications and mid-hearing document sharing.

Things to Remember on the Day of the Hearing

On the day of the hearing, parties and counsel should log on to the hearing platform at least 15 minutes prior to the scheduled start time to ensure that potential technical issues can be resolved and the hearing can begin on time. The parties and counsel will wait in a virtual “waiting room” until the moderator is ready to admit all participants to the hearing at the same time. The moderator may then use “breakout” rooms to facilitate private conversations between participants, as appropriate (e.g., to allow members of a party to confer with one another outside of the presence of the arbitrator and witnesses).

In the event of a technical failure or if the arbitrator determines that it would be unfair to any party to continue the hearing because of the quality of the transmission, the arbitrator may terminate the videoconference at any time and take other necessary steps to ensure the fairness and integrity of the proceedings. Likewise, if a participant gets disconnected from the hearing or experiences some other technical failure, and connection cannot be re-established within a five-minute interval, such participant must email all hearing attendees, by “replying all” to the hearing invitation circulated, and monitor email (or cellphone, if internet connect was lost) for further instructions from the arbitrator. The arbitrator may, in such an instance, take steps to pause the hearing (including moving participants into the virtual “waiting room” or one or more “breakout rooms”). If it appears that the connection cannot be re-established with a testifying witness reasonably promptly, the arbitrator may require a party to call its next witness.

Above all else, privacy and confidentiality of the proceedings must be maintained. Participants should remember that during recesses and before the hearing convenes, their microphones and video screens may be “open.” As such, participants are advised to manually mute their audio and suppress the video at any time that the hearing is not in session. Otherwise, although the video display may appear to be blank, other participants, including the arbitrator, may be able to overhear private conversations.

In summation, while the COVID-19 pandemic has certainly caused the legal community to reconsider its approach to things such as trials and arbitrations, online platforms enable us to continue to work effectively. Although there are unique particularities and potential challenges associated with remote hearings that may not be present in traditional in-person hearings, if counsel is adequately prepared based on the guidelines discussed here, unnecessary delays to proceedings resulting from social distancing requirements can certainly be avoided. 

The authors gratefully acknowledge the contributions of Shradhha Patel, a 3L at Rutgers Law School, to this article.