New NAA Opinion on Requiring Video Hearings
by Amy Schmitz
What happens if a party refuses to use videoconferencing? On April 1, 2020, the National Academy of Arbitrators (NAA) issued Advisory Opinion No. 26 regarding whether an arbitrator may order a video hearing over another’s party objection. The NAA found that the need to “provide a fair and adequate hearing” and to “provide effective service to the parties” would allow an arbitrator to issue such an order without mutual consent in certain extraordinary circumstances—for example, during a pandemic an in-person “hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters.”
Hmmm….The NAA advisory opinion stresses that before issuing such an order, an arbitrator should be confident that he or she, as well as the parties and counsel, is familiar with the video platform to be used but still says that if one party does not agree to a virtual hearing, the arbitrator or panel may order that the hearing be conducted via videoconference provided it will give the parties “a fair and reasonable opportunity to present their case and will allow the hearing to move forward on the dates previously scheduled.”
There is a dilemma! Would you do it? I see this causing litigation.
Professor Amy J. Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit.
Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force. Recent speaking engagements include various webinars and events around ODR with the American Bar Association, ODR Forums in New Zealand, Paris and the U.S., Universities in Munich and Augsburg, Germany, Cyberjustice Lab in Montreal, Consumer Financial Protection Bureau in Washington, D.C.; University of Leicester in England; Stanford Law School; and many other universities and conferences throughout the world. She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. She also has taught in France, South Africa, and Oxford, England, and has been an expert and liaison for the United Nations working group seeking to create a global ODR mechanism (UNCITRAL WG III). Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.
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