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<xTITLE>Virtual Practice Makes Virtually Perfect – Practical Considerations for Virtual Hearings Identified through Simulations with Experienced Counsel and Arbitrators</xTITLE>

Virtual Practice Makes Virtually Perfect – Practical Considerations for Virtual Hearings Identified through Simulations with Experienced Counsel and Arbitrators

by Julie Hopkins, Daniel Urbas
December 2020

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

(j) scheduling. 

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;

(g) backgrounds;

(h) pauses;

(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.

For the full article, see here.

 

 

 

Biography


Julie Hopkins

Julie was counsel with Borden Ladner Gervais LLP and practised commercial litigation, arbitration and administrative law for more than 25 years.

 

She advised and represented clients on complex and technical matters concerning oil and gas, insurance, labour and employment, estates and trusts, corporate, and constitutional law. As a result, she has experience across a variety of industries including electricity generation and transmission, oil and gas (including oilsands, pipelines and LNG), construction, aviation, trucking, real-estate development and health care.

 

As an arbitrator, Julie has decided matters ranging from disputes under asset purchase agreements to appeals of election results under a First Nation’s election code. She is an unjust dismissal adjudicator under the Canada Labour Code. As a Panel Chair of the Alberta Insurance Councils Appeal Board, she also heard appeals of decisions concerning the licensing and discipline of insurance agents, brokers and adjustors.

 

Julie is also an instructor and course director for the Chartered Institute of Arbitrators Accelerated Route to Fellowship Course, which is aimed at experienced arbitrators and arbitration counsel.

 


Daniel Urbas is an experienced litigator, arbitrator and mediator with over 25 years of dispute resolution experience. He has earned a variety of repeat, annual peer recognitions including “Leading Lawyer” in “Commercial Arbitration” in the 2019 edition of the Lexpert ® / American Lawyer Guide to the Leading 500 Lawyers in Canada, “Most Frequently Recommended” in the 2019 edition of The Canadian Legal Lexpert® Directory for Commercial Arbitration, “Thought Leader” in 2019 edition of Who’s Who Legal – Litigation and AV® Preeminent™ by Martindale-Hubbell®.

Daniel focuses exclusively on serving as an arbitrator and mediator.  As arbitrator, Daniel serves as a sole arbitrator, as chair or as party-nominated member of three (3) member arbitration tribunals. His appointments have been made by individual parties, by the parties jointly on consent, by court orders and by various administering institutions including ICC, CCAC and IATA.

A Fellow of the Chartered Institute of Arbitrators (“CIArb”) based in London, UK, as well as a founding Director of the CIArb’s Canada Branch, Daniel is listed on various rosters including general commercial rosters organized by the ICDR, CIETAC and BCICAC and on more specialized, industry/activity specific rosters such as the Canada Transport Agency’s roster.

Daniel’s dispute resolution experience spans a variety of commercial and civil matters, intellectual property (including anti-piracy and anti-counterfeiting litigation) and information technologies, energy (wind, bio), natural resources (mining, forestry, fishing), shareholder disputes, real estate and lease disputes, product liability, construction, distribution and franchise, Aboriginal law matters including treaty and land claims litigation and dispute resolution of agreements relating to governance and natural resource development on native peoples’ territories.

He handled trial and appellate advocacy, as well as urgent and extraordinary applications. He has appeared before the provincial and federal courts, including the Supreme Court of Canada, as well as before arbitration tribunals and various administrative tribunals. Fluently bilingual in both English and French with degrees in both Common Law and Civil Law, Daniel is an active member of the Barreau du Québec, the Law Society of Ontario and the Law Society of British Columbia.  At his former national law firm, up until June 2017, Daniel served as Regional Leader of the International Trade Litigation and Arbitration group and Regional Leader of the Intellectual Property Litigation group. Formerly, Daniel was also Regional Leader of the Commercial Litigation group and National Leader of the Intellectual Property Litigation group.