The COVID-19 pandemic has affected how disputes are heard. While arbitration, and in particular international arbitration, was already fairly amenable to having certain procedural steps occur through telephone or video-conference, holding entire hearings through video-conference is quickly becoming the new normal. Starting in the spring of this year, many of the leading arbitral institutions responded to the COVID-19 pandemic by issuing guidelines and checklists for virtual hearings. Some organizations are now offering services specific to virtual hearings, such as Arbitration Place Virtual, which offers dispute resolution services through a secure eHearing format along with hearing technology specialists to assist the tribunal and the parties.
Although the widespread adoption of virtual hearings might (still) be viewed as only a temporary response to the COVID-19 pandemic, virtual hearings in some capacity are likely here to stay. Long held myths about needing to be physically in the room to “read the room” are being shattered as arbitrators (and even before the pandemic, some judges) have realized that high definition screen resolution allows for close scrutiny of the witnesses’ demeanour, without the need to constantly reposition between questioner and examiner: they are right next to each other on the monitor. So, it’s in our view necessary that counsel learn how to advocate – virtually.
Based on our collective experience, we provide some high-level considerations and tips on how to prepare for a virtual hearing:
- Security.Confidentiality, along with cybersecurity and data protection regulations, can be among the primary concerns for many participants in arbitral proceedings. As you consider the videoconferencing platform for a virtual hearing, ensure that an appropriate “cyber-protocol” is in place. This would include a discussion on the features of that platform, who would have access to the hearing and when, abilities to record the hearing, and possibly other points unique to any particular matter.
- Compatibility. All participants in arbitral proceedings must use compatible technology and equipment. Each participant (arbitrators, counsel, party representatives, witnesses, court reporters, interpreters, etc.) should be brought into the discussion (likely at the first case conference) about what technology is available to them in an effort to ensure compatibility. Counsel should make arrangements for those participants who lack the necessary technology and equipment. For example, consider practice sessions with witnesses or interviews with potential interpreters using the same videoconferencing platform that will be used during the virtual hearing to spot any issues. If equipment needs to be provided to someone, at a distance, there might be additional timing considerations.
- Reliability. Everyone has experienced the seemingly inevitable failure of technology, be it a corrupted document or a faulty internet connection. Virtual hearings are no exception to potential technological failures. For example, although counsel may be well equipped with direct hardline connections to the internet, your witnesses may be in their basement with an unreliable Wi-Fi connection. Having early practice sessions might reveal gaps in the consistency of one’s access and a need for a back-up plan. In our experience, an Ethernet landline works best.
Preparation for Counsel and Witnesses
- Project Management. Learning new skills and getting comfortable with virtual hearings will take time for counsel and other participants alike. Plan for it. Identify any procedural steps required by the arbitral tribunal that must be completed prior to the virtual hearing and establish a time table to track progress. These steps will often require the participation of your witnesses and others involved in the hearing. Schedule practice sessions as early as may be required by the arbitral tribunal or necessary for your preparation. Prepare documents in electronic briefs in support of examinations to prevent delay in retrieving documents to put up on the share screen function. Prepare your authorities in electronic briefs in support of your argument for the same reason. Also consider any demonstrative aids that you might need to prepare and have available.
- Practice Sessions. Practice sessions are necessary for all participants including counsel. The rhythm of cross-examinations, for example, will be affected by any delays in retrieving documents to put up on the share screen function. If you have the benefit of co-counsel, or a clerk, consider having them in charge of putting up documents on the share screen while you are examining witnesses. This approach has proven successful for some, but requires practice to ensure your team has the requisite familiarity with your cross-examination and the documents. Your witnesses will also benefit from practice sessions to get used to the videoconferencing platform and reviewing documents put to them on a screen.
- Get Support. From time to time, you will need a lifeline. As counsel adapt to using new platforms that may have been previously unfamiliar, such as Zoom, there will be a learning curve. In a virtual hearing, there may be numerous participants. As counsel, you will likely want to pin the arbitrator on your monitor. If you forget how to do so, who will you turn to? If it’s available, internal IT support may be able to assist and should be on “stand-by” to help with any issues. The same lifeline should be available to any witnesses who may be located out-of-jurisdiction. Luckily, some arbitral institutions offer services specific to virtual hearings such as a technology specialist who sit in during the hearing to resolve any issues.
- Microphone. Unless you’re speaking, put your microphone on mute. Counsel may prefer to gather physically in the same room – in this case, the mute function is crucial because it prevents any echo from your co-counsel’s audio and, more importantly, inadvertent leaking of private information. The same is true for your witnesses and other participants in the arbitral proceeding. While an exception may be made for objections, some arbitrators have preferred that counsel raise their hand and wait to be acknowledged.
- Screen-Sharing. Videoconferencing platforms include a screen sharing function by which counsel can put documents before the arbitrator and witnesses. Some documents are larger then others and, at times, arbitrators and witnesses may be distracted if you’re scrolling through a large document to find the specific pinpoint that you intend to discuss. On platforms such as Zoom, there is a “pause” function that will effectively freeze your screen. After you hit pause, scroll to the pinpoint in the document to which you want to take the arbitrator or witness and once you arrive, hit “play”. This will minimize the distraction of scrolling through pages of a document.
- Environment. During COVID-19, many of us have been displaced from the office and find ourselves at home. This is true for your witnesses and other participants in the arbitral proceeding. Ensure that everyone has an appropriate set up: preferably a neutral background, adequate lighting, and sufficient space for the camera to capture a full view of the participant. Keep in mind that, more likely than not, your witnesses will be asked to use their camera to provide a 360 degree view of their environment. If a witness is uncomfortable giving evidence from their home or office on their own, alternate arrangements will be necessary. If a witness cannot join you at your office, there may be another location to which they can travel (i.e., another office) that would make them more comfortable. However, due to the COVID-19 pandemic, keep in mind that social distancing rules may apply and the number of participants in a boardroom may be limited. These arrangements can take time to put into place, again underscoring the need for advance planning. As always, counsel should have and communicate an alternate plan particularly during the COVID-19 pandemic where a last-minute public health order requires a pivot.
As the technology supporting virtual hearings advances, and as participants in arbitral proceedings become more comfortable, new norms and expectations of virtual hearings will arise. For example, there is a spectrum between in-person and fully virtual hearings (a hybrid approach) that can allow for tailoring any procedure to something that works for the parties. These discussions should happen early with all participants to ensure everyone is capable and comfortable proceeding virtually.