In light of the onset of Covid-19, and the resulting required physical distancing of indeterminate duration, counsel and parties will be unable to conduct in-person activities related to adjudicated proceedings for the foreseeable future. Until we are through the current challenging circumstances, we must adjust accordingly to ensure swifter access to justice and adjudication of disputes which remain vitally important to the parties prosecuting and defending them.
One available avenue to ensure swifter access to justice and a safe and reliable adjudication of disputes is virtual arbitration. Parties may decide to arbitrate their entire dispute, or a portion of their dispute (such as a motion regarding the scope of discovery or other preliminary issue), in an effort to move it forward while the court's operations are restricted.
Select Benefits of Virtual Arbitration
Virtual arbitration provides a number of advantages to regular litigation at present. A selection of the benefits to virtual arbitration are as follows:
1. Access and timeliness. Ontario's courts, like many others, suspended regular operations as of Tuesday, March 17, 2020, and stipulated that they would hear only urgent and emergency matters. Although Ontario's courts have since begun to expand remote availability, access to the court may remain somewhat limited. Access to capable and experienced arbitrators, however, is not. Many arbitrators have already swiftly adjusted to offer virtual proceedings, and many highly sought after arbitrators find themselves with availability due to the cancellation or postponement of previously-scheduled live hearings.
2. Familiarity with virtual medium. Many counsel and judges are now navigating technology with which they were previously unfamiliar. Counsel and arbitrators who participate in domestic and international commercial arbitrations and a number of arbitral institutions and centres which administer arbitrations, however, are already familiar with the submission of documents electronically, including hyperlinking to evidence and case law electronically and with hosting certain aspects of proceedings virtually, whether by phone or videoconference. The ability to select an arbitrator who is familiar with and comfortable with such technology offers the opportunity for a more seamless adjudication of disputes without concern that the technology utilized will prove a hindrance.
3. Tailored proceedings. As has been said many times by public officials, the situation in which we find ourselves is unprecedented in the modern era. Although many counsel and parties are familiar with conducting some steps in proceedings virtually, such as examinations for discovery and non-contentious court conferences, very few, if any, have had the opportunity to participate in, or conduct, dispositive hearings or trials. Thankfully, pursuing arbitration permits parties to design a flexible dispute resolution process and to anticipate what issues may arise in a virtual setting and carefully construct the rules with which they wish to abide throughout the arbitration, including during the arbitration hearing itself.
Checklist of Best Practices for a Virtual Arbitration Hearing
The third benefit listed above is a particularly advantageous aspect of virtual arbitration. Indeed, how the arbitrator(s), counsel, and the parties, construct the rules with which they wish to abide throughout the arbitration hearing is vitally important to ensure that the virtual arbitration hearing proceeds smoothly.
Accordingly, we have put together the following checklist, which exclusively addresses circumstances that are unique to a virtual arbitration hearing. It is intended to assist an arbitrator, tribunal, counsel, and/or parties to an arbitration, when supplementing an existing procedural order, or additional procedural terms, that otherwise govern(s) the conduct of the hearing. It is also intended to apply to a hearing that is to be conducted entirely (or nearly entirely) remotely.
It is not intended to stipulate what is best in all situations.
A. Preliminary Matters
- Agreement
a. Consider obtaining agreement by all parties involved that the fact that the hearing is being conducted virtually will not be used as a ground to challenge the result of the hearing.
B. Selection of Videoconferencing Platform and Virtual Hearing Support Functions
1. Platform Selection
a. Select an appropriate videoconferencing platform (e.g., Zoom1, Microsoft Teams, WebEx, GoToMeeting, etc.).
b. The platform should, at a minimum:
(A) provide robust protections for the confidentiality of the proceeding;
(B) offer high resolution video imaging and quality audio of participants;
(C) enable subgroups of participants (e.g., an arbitrator or tribunal (hereinafter collectively referred to as a "Neutral"); counsel for a party; counsel and a witness; counsel for the parties) to meet by themselves during the proceeding when permitted2; and
(D) enable participants to display documents on the screen, and allow a cursor to point to selected portions of the document, without completely obscuring the video images of the other participants.
2. Hearing Support Function
a. Determine whether the parties will retain a third-party service provider to arrange, monitor, support and troubleshoot the videoconferencing system, including during the conduct of the proceeding or whether they will rely on the participants to perform those functions.
b. In the absence of a third party service provider, representatives of the parties should arrange to perform those functions.
c. In either event, a capable trouble-shooting resource should be available on short notice during the conduct of the proceeding.
3. Costs
a. Determine how the parties intend to share costs (e.g. equally) of hearing support functions.
b. Consider permitting the Neutral to shift the cost in favor of the prevailing party(ies).
C. Preparatory Activities
- Equipment
a. Ensure compatibility of each participant's equipment (including, where applicable, Neutrals, counsel, party representatives, witnesses, court reporters, interpreters, representatives of the pertinent arbitral institution, and any separate litigation support vendors retained by a party) with the selected platform.
b. Each participant should be responsible for ensuring their own equipment works properly. This should include the following for each participant:
(A) testing to ensure the compatibility and functioning of that participant's equipment;
(B) ensuring that the remote location in which that participant is located has adequate internet bandwidth to support the use of the chosen platform without interruption; and
(C) familiarizing themselves with the chosen platform's features and operation.
c. The parties may consider additional requirements for equipment, including, but not limited to:
(A) prohibiting use of a devices with a screen size measured diagonally less than 12.5 inches (i.e. smart phones);
(B) availability of two screens, so that one may be used to display the videoconference proceeding and the other to display documentary and demonstrative exhibits;
(C) use of headphones to maximize audibility; and
(D) location of webcams such that each participant appears, well lit, against a neutral and not distracting background, with only head and shoulders visible.
2. Witness Familiarity
a. Counsel should be responsible for ensuring that all witnesses called by the party whom counsel represents are familiar with the chosen platform and have suitable equipment to participate in the proceeding without delays attributable to inadequate familiarity with the chosen platform or inappropriate equipment.
b. Counsel for the party calling the witness should consider conducting a test session with the witness in advance of the proceeding in which the witness practices use of both the chosen platform and the process to view any electronic exhibits.
3. Test Session
a. Consider conducting a non-substantive test session devoted solely to the operation of the chosen platform at least 48 hours before the scheduled start of the proceeding with all participants other than non-party witnesses.
b. During this test session, permit each participant to conduct all activities that they are expected to take part in during the proceeding during this test session (e.g. a short "mock" examination on an unrelated subject, objections by defending counsel, use of an interpreter, use of a breakout room function, etc.).
4. Oaths
a. Consider whether applicable law authorizes the Neutral to administer oaths to witnesses by videoconferencing, and if not, determine a process to follow to ensure reliable testimony.
5. Interpreters
a. If applicable, where any witness or other participant requires the use of an interpreter, determine whether interpretation shall be consecutive or simultaneous.
D. Requirements During the Proceeding
- Advance Log-On
a. Set a time (e.g. 10 minutes in advance) for all participants to log onto the chosen platform in advanced of the scheduled start time of the proceeding.
2. Time Zones
a. If applicable, schedule the proceeding to be reasonably convenient for all relevant and materially different time zones. This may necessitate a shorter-than-normal daily schedule if availability cannot be easily aligned due to the different time zones.
3. Emergency Notifications/Back-up Plan
a. Devise a process by which any participant who has temporarily lost an adequate connection to the chosen platform may promptly notify the Neutral and other participants of that event (e.g. use of text messaging, a telephone call to a single designated number that will ring in the vicinity of the Neutral, etc.).
b. Identify a back-up plan pursuant to which the parties and the Neutral will reconvene in the event this occurs (e.g. by teleconference).
4. No Multi-tasking
a. Consider whether to impose a requirement that all participants devote their full attention to the proceeding, such that multi-tasking is not permitted absent work on matters related to the proceeding.
5. Termination
a. Permit a Neutral to terminate the proceeding if it determines that the videoconferencing format is not working as anticipated, is otherwise inadequate, or is prejudicial to any party or to the integrity of the proceeding.
6. Disclosure of Participants
a. At the outset of the proceeding each participant should identify any other persons present at the participant's location. Each participant should have an ongoing obligation to alert the Neutral and other parties if any additional person joins the participant.
7. Confidentiality
a. Require that the parties shall take all practicable steps to ensure the confidentiality of the proceeding. No person should have access to the live video and/or audio feed of the proceeding other than disclosed participants.
8. Recording
a. Prohibit participants from recording any part of the proceeding without the advance, written authorization of the Neutral.
b. Consider whether the Neutral may record any or all of the proceeding provided it alerts the parties in advance that it will do so.
E. Documents and Witness Examinations
- Provision of Documents
a. For any proceeding in which documentary or demonstrative exhibits will be used, the parties should confer and report to the Neutral at least one week in advance of the proceeding, absent exigent circumstances warranting a shorter time period, how they propose to enable participants to see and review such exhibits.
b. Parties may consider placing all exhibits in the form of electronic files in a secure, accessible web-based document repository available for the Neutral and the parties. (If this practice is utilized, participants should download such files into their own devices as part of their own tests to ensure proficiency with, and access to, the materials)
c. The parties, and the Neutral, should consider, to the extent practicable, using a second laptop or other device to display exhibits while viewing the video images of the participants on a primary laptop or device.
2. Documents for Witness Examination and other Witness-related Issues
a. Counsel should be responsible for arranging for any witness to be examined by that counsel, on direct or cross-examination, to have full and fair access to any exhibits upon which the witness may be examined or to which reference is made during the witness' examination.
b. If such access is to be effected through displaying the document on a screen, counsel for the party on whose behalf the witness has been called should consider ensuring that the witness has two screens available so that the witness can see the participants on one screen and review exhibits on the other and is reasonably proficient in accessing electronic exhibits.
c. If access is to be effected with hard copies (which should only occur by agreement of the parties and with permission of the Neutral), counsel for each examining party should arrange to deliver the hard copies to the witness sufficiently in advance of the proceeding to ensure the documents have arrived before the witness examination is anticipated to commence.
(A) To preserve a party's work product, counsel may consider delivering the hard copies in a sealed envelope or other receptacle to the witness, and to request that the witness open the receptacle for the first time during the examination in view of the witness' webcam.
d. If the parties agree, and the Neutral permits, (and likely only in exceptional circumstances), a witness could testify by telephone, provided that in view of the nature of the witness and the subject of the testimony, a telephonic examination will be fair and not prejudice the presentation of the case of any party.
Conclusion
As counsel and parties seek to proceed with adjudicated proceedings amidst these unprecedented circumstances that may persist for some time, virtual arbitration provides a number of advantages worthy of consideration. The ability to design a flexible dispute resolution process, and to anticipate what issues may arise in a virtual setting and carefully construct applicable rules, including that which we have attempted to outline above, is one of many such advantages3.
Footnotes
1 References to certain commercial service providers in this checklist are not intended to endorse their service or product or provide any representation as to their quality, adequacy, suitability, privacy, or reliability; they are identified solely for illustrative purposes.
2 Consider potential issues posed by the availability of "private chatting" functions during a videoconference, both with respect to (1) the possible availability of "private chatting" between counsel and a witness during the provision of testimony and (2) the possibility that a record of all "private chats" conducted during a hearing may become available to the "host" of a videoconference upon its conclusion.
3 Thanks are due to Richard Ziegler, an international arbitrator, with whom I developed the checklist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
