When COVID-19 hit, several checklists and webinars about virtual hearings began to circulate among arbitration practitioners. Some reported on limited anecdotal experiences with hearings held by video conference. None appeared to offer counsel or arbitrators the benefits of hands-on experience gained through participating in a simulated virtual evidentiary hearing with other senior arbitration practitioners.
Given this, Daniel Urbas and I decided to undertake a series of simulated virtual hearings to learn from doing as opposed to simply watching or listening. We had concluded the use of video conferencing for hearings appeared to be inevitable going forward, at least until COVID-19 restrictions eased and likely beyond. Court decisions imposing remote questioning or a virtual hearing over the objections of a party, usually based on natural justice arguments, reinforced our conclusion. While acknowledging some difficulties with video conferencing, Courts consistently appeared to take the view that there was nothing inherently unfair about proceeding virtually.
Through the simulations, we wanted to learn not only from our own mistakes but those of the other participants and to do so without creating expense for clients or causing any real harm (except, perhaps, to our egos). We wanted to become more informed as arbitrators so that we could design and manage a virtual hearing based on the various skill levels and enthusiasm of participants. Not all participants will be tech-savvy or open to a virtual hearing nor can we expect that all will agree to a single platform. We needed experience to understand where the pitfalls were - which enthusiasms had to be calmed and which issues could be adequately addressed.
For the simulations, we generated a modestly complex fact pattern complete with notice of arbitration and response, pleadings, admitted and contested exhibits, witness statements, written argument as well as an arbitration protocol and procedural order for a virtual hearing.
Then, we invited between ten and twelve experienced arbitration counsel and arbitrators from across North America to participate in each hearing. Each agreed to take on a specific role at the hearing (counsel team member, panelist, party representative/witness). They also participated in a series of pre-hearing online meetings to resolve technological hurdles and define objectives and prepare for the hearing. The participants consisted of practitioners from leading regional, national and international firms, senior government legal counsel, academics and independent neutrals. Each brought his or her extensive and informed advocacy and arbitration experience.
The simulations were held between May 22 and October 5, 2020. I served as Panel Chair while Daniel managed the overall process. We were assisted throughout by a dedicated Tribunal Secretary, Catherine Ou Jing.
Through our own observations and the feedback received from participants, we identified a number of considerations, some significant and others less so, for those engaging in virtual hearings. The considerations fell into two general categories. The first included considerations related to maintaining a fair and smooth-running virtual evidentiary hearing such as:
(a) expecting problems;
(b) adequate connectivity;
(c) adequate devices;
(d) full function video conference platform;
(e) requiring headphone use;
(f) a two screen minimum;
(g) requirements for the pre-hearing technical meeting;
(h) hands on practice;
(i) third party IT support; and
The second category concerned practice and advocacy considerations:
(a) the oath/affirmation;
(b) deeming a virtual hearing location;
(c) hearing preparation;
(d) camera placement;
(e) opportunities for the legal team to react in real time;
(f) screen settings;
(i) delays in objections;
(j) loss of control of the witness environment;
(k) secure communication plans;
(l) overstimulation; and
(m) the need for extra support.
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