Guide to Remote Arbitrations
During the COVID-19 Pandemic and Beyond
For decades, perhaps centuries, the fundamental setup of legal proceedings, from actual trials to depositions to arbitrations, has remained essentially unchanged – participants converge/convene in person in a shared space with a court reporter utilizing the then-current technology to capture the proceedings. 2019 didn’t look all that different from 1919, really.
In the wake of the COVID-19 pandemic and all the changes that have rocked the legal world, things have shifted quickly. For the foreseeable future, everyone being in the same place isn’t a possibility. Virtual technologies are quickly finding their way into the daily fabric of the legal industry, including remote arbitrations which have become a necessary reality.
With a large backlog of cases in most courts due to COVID-19 shutdowns, many parties are turning to arbitration to keep civil cases moving toward resolution. Recently, intellectual property attorney Annette Hurst of Orrick Herrington & Sutcliffe LLP commented on the current state of arbitrations and trials and the impact delays may have on the industry.
“It seems like some people are going into arbitration now. And I guess that doesn’t strike me as being a whole lot different from a bench trial. For commercial disputes for two business actors, let’s face it: That probably does make a lot of sense for many types of disputes.”
She went on to say, “There was a point last year or the year before, where the entire [alternative dispute resolution] movement paused a little bit and courts started saying, ‘Hey, wait a minute, we’re not having enough jury trials anymore.’ [The pandemic] is probably going to put a wrench in that. I feel like the pendulum had started to swing back in a fairly significant way, and this is going to put a dent in that.”
As arbitrations are alternative private proceedings and don’t involve the court, they afford certain flexibilities that parties have found helpful in the era of COVID-19. With the help of remote technologies, arbitrations have moved online, allowing parties to progress cases forward and adopt procedures that work for them and their clients.
In a remote arbitration, you can participate from the safety of your own home or office. None of the participants need to be in the same building. And with the appropriate preparation, the right technology and a skilled remote arbitration technician, virtual arbitrations can be seamless, efficient and even routine.
Here is a step-by-step guide of important considerations for your next remote arbitration:
- Step 1: Decide on the Platform and Host
The first question to answer is, “Who will host the remote arbitration?” If not dictated by the arbitrator or panel, parties will need to decide on a platform. It is critical to select the right partner to host your remote arbitration to ensure they have the experience, expertise and technical capabilities to ensure a smooth proceeding.
- Step 2: Technology Preparation & Planning
After determining the platform, there are other considerations that will dictate the setup of your remote environment, including:
- From what location(s) will participants attend?
- Will your team be socially distancing within the same office or in separate locations?
- If participants are located in same location, how many people can/should be accommodated in each room?
- Will you have individual witnesses come to your office or will they appear from home?
- What are your technology preferences such as monitor size, room setup, etc.?
- Do you prefer to sit or stand?
- How many monitors will each participant require?
Based on the answers to these questions, the right remote arbitration partner will recommend the best technology setup and can provide additional equipment as needed. In some cases, they can even go to a witness’s home to set up all equipment and provide on-site assistance. As the adage goes, “if you fail to plan, you plan to fail.”
- Step 3: Handling Exhibits Remotely
The next consideration for a remote arbitration is how exhibits will be introduced remotely and shared with all parties. To introduce exhibits in realtime through trial presentation software such as Trial Director or OnCue, we recommend leveraging an experienced trial technician. They can facilitate the presentation of exhibits through screen sharing and seamlessly perform document callouts, highlights, annotations, play videos and more. As every case is stronger when presented visually, we recommend developing persuasive legal graphics that align with the key themes in your case. Our experienced team of legal graphic designers have produced 6,000,000+ legal graphics (and counting) and can help build visual case strategies for every phase of litigation, using behavioral science, color sciences and other tools. When it comes to creating and managing exhibit binders, it may be helpful to send digital exhibit binders to all parties in advance through services like InstantExhibit+ by U.S. Legal Support. Instead of printing and mailing physical boxes of exhibit binders, through a secure online exhibit repository, all parties have access to view and download the exhibits at their convenience prior to the remote arbitration.
- Step 4: Platform Setup & Training
To ensure everyone is properly prepared and comfortable with the technology, it’s imperative to conduct practice sessions with the attorneys, witnesses, arbitrator and anyone else involved in the arbitration. We recommend multiple practice sessions:
- Attorney Sessions: With each attorney, walk through the camera, lighting and audio setup and practice logging into the virtual platform to ensure proper connectivity. It is also helpful to run through the technology setup to ensure that while viewing exhibits on-screen, the attorney can still see the witness, arbitrator and opposing counsel to read facial expressions and body language.
- Witness Sessions: We also recommend private sessions with witnesses, as needed. This will help them feel comfortable with the process and the technology, confirm their equipment functions properly and ensure that they’re able to view exhibits (we discourage the use of iPads and cell phones as the screens are small).
- Step 5: Outline the Rules of Arbitration
It’s imperative to have all parties outline and agree to the rules of the remote arbitration. Key considerations and technology ground rules include:
- Is there a sequestration order for witnesses prior to their testimony or during breaks? If so, make sure your remote platform allows for secure, private virtual waiting rooms and the ability to admit participants as directed and on-demand.
- Will there need to be virtual breakout rooms for private conversations? Virtual breakout rooms can be set up in advance and entered and exited with just a click of a button. While inside, participants can securely and privately chat and share documents.
- Will virtual backgrounds be required or prohibited?
- What is the protocol for marking and introducing exhibits?
- Who will keep their camera turned on and who will be off camera?
Other important considerations and best practices:
In addition to the steps outlined above, there are other unique considerations for remote arbitrations including video setup.
The most basic function of a remote arbitration is to display everyone on video. We recommend that four people have their cameras turned on at all times: 1) the arbitrator, or, in instances of a panel, arbitrators; 2) the witness; 3) the attorney asking questions; and 4) the attorney who is objecting. By using the gallery view, or, as some call it, “The Brady Bunch” view, everyone will see a grid of videos on their screen, which allows for a cleaner setup and better focus. Each of these feeds will be displayed on screens large enough to facilitate assessment of facial expressions and evaluation of credibility. If you prefer the alternative (one large video and film-strip style thumbnails on the top), that view is available and can be enabled most easily with the help of a remote arbitration technician.
During the remote arbitration, the arbitration technician will facilitate and manage everything including the planning and setup steps above to ensure a smooth proceeding. From working with the master exhibit binder and witness lists to ensure everyone is connected to setting up breakout rooms, private waiting rooms and troubleshooting issues on the fly, your technician is there to handle all the details so you can focus on the proceeding.
As technology continues to improve and the number of remote arbitrations keeps increasing, what once may have seemed unusual and a little artificial, will become, well, just another day “not at the office.”