The COVID-19 pandemic has changed the rules of the arbitration game the way it’s changed everything else. The various parties, counsel, and arbitrators are switching to the new norms. While it is difficult to embrace this new normal, there are both good and bad things about online arbitration.
The advantages are that it is more efficient and affordable and reduces the need for travel, and reduces the chances of getting infected with the virus! Win-win. Apart from the advantages, the disadvantages include incorporating a new way of cross-examination. You cannot rule out chances of technological failures and disturbances. There may be confidential problems, and it may also impact procedural fairness sometimes. Here are the defining features of video arbitrations.
Zoom and Arbitration
People who are cozying up to the new normal and virtual mediations find that Zoom is more suited to mediations rather than arbitration. People may like to postpone arbitrations and wait until the pandemic is over and then resume the procedures. However, who knows when the pandemic will get over? Frankly, no one!
So, it is not possible to take a few cases slow. When there is no other alternative, the only way forward is to choose the one you have at hand. Some lawyers may beg to differ, but most will come around and choose arbitration by videoconference at the end of the day, at least for the time being.
The Difference Between in-Person and Zoom Conferences
Is there any difference between choosing in-person and a platform like Zoom for arbitration? It is pretty similar. It just takes some practice. And once you do, it proves to be effective. So, this is how it happens. Counsel provides the contact information. They have a meeting number, and password. Whoever is part of the meeting, the counsel, arbitrator, and the court reporter join the meeting and send notifications to the witnesses via cell phone or e-mail, to join the meeting and the witnesses to do so at the right time.
All About Witness Exhibits
The arbitrator and counsel ask the witness as they testify, and the disputing parties answer questions on their testimony and the exhibits. Counsel shows the witness exhibits to direct questions to him or her about the exhibits in a couple of ways. The counsel can either provide the witness with hard copy exhibits in advance, and the witness goes through them as needed.
Another way to do that is to use the share screen techniques on virtual platforms such as Zoom to show everyone the exhibit on the screen. Well, sharing exhibits onscreen may have a distinct advantage over showing an in-person arbitration as the opposing sides have binders full of exhibits. Instead of the counsel and the witness thumbing through a binder to look for a certain exhibit, counsel does a better job of it while putting it onscreen. It saves time.
Saves Time on Travel
An online arbitration helps witness from being late because of travel delays. When you don’t spend time traveling, you can wrap up the whole proceeding in double-quick time as the witness can conduct the proceedings at their home or office. A witness will also get stuck waiting in a JAMS resolution center lobby or waiting room, just staying at home or office will do.
Determining Witnesses Credibility
Attorneys often wonder while conducting arbitrations virtually whether they will be able to study the witness’s face better and gauge his/her credibility. It may be difficult to gauge, but it is doable if you pay more attention to expressions’ nuances. And body language will capture it on the camera. One can also view the lawyer and witness’s expressions at the same time, unlike an in-person hearing.
Remember that all the stakeholders in the process should be willing to take things online. This includes the disputing parties, the witnesses, the arbitrators, and so on. It is also important to evaluate the technological challenges that one might face with online arbitration.
However, we would say that conducting arbitrations using online platforms isn’t as difficult as it seems on paper. In many ways, it can be even more effective than in-person hearings. So, give it a chance, and you’ll be surprised at its many advantages.