I have heard from many lawyers who have reluctantly adapted to virtual mediations that even though Zoom and other platforms work well for mediations, they do not work so well for arbitrations. These lawyers have asked that I postpone their arbitrations until the pandemic is over and we can arbitrate in person. My response is always the same: Tell me the date when the pandemic will be over, and we will arbitrate then. Of course, no one knows when that will be, and cases cannot sit idle forever. Slowly, and with a push from arbitrators, most lawyers have come to the realization that there is currently no alternative to arbitration by videoconference.
What is virtual arbitration using a platform such as Zoom like, and how is it different from in-person arbitration? The answer, surprisingly, is that it is very similar to an in-person arbitration once you get used to it, and it works very well. The mechanics are fairly simple. Counsel provide their contact information and their witnesses’ contact information, and they are given a meeting number and a password. The arbitrator, counsel and the court reporter, if there is one, join the meeting, and counsel notify all witnesses, either by email or cell phone, when it is their time to join. The witnesses join the meeting at the appropriate times and give their testimony.
Typically, an arbitration involves asking a witness about various exhibits. The arbitrator and all counsel can view the witness as he or she testifies, and they can ask questions of the witness. Counsel may show the witness exhibits in order to question him or her about the exhibits in two ways. Counsel can provide the witness with hard copies of the exhibits in advance, and the witness can look at them as needed. Alternatively, counsel can use the screen share function on the virtual platform to show the witness—and everyone else—the exhibit on the screen. If you have ever participated in an in-person arbitration where each side has binders full of exhibits, you can see the advantage of sharing exhibits onscreen. Instead of the witness (and the arbitrator and counsel) thumbing through a binder in search of a specific exhibit, counsel can simply put it on the screen. It is a real time-saver.
Speaking of time-savers, having an online arbitration can prevent a witness from being late due to travel delays. During an online arbitration, because a witness doesn’t have to travel in order to testify he or she can appear from his or her home or office. If the time a witness is scheduled to appear is pushed back, he or she won’t be stuck waiting in a JAMS resolution center lobby or waiting room. A witness can just stand by at his or her home or office.
Attorneys who are skeptical about conducting arbitrations virtually often wonder if it’s possible to read a witness’ face and capture his or her demeanor onscreen. In other words, can a witness’ credibility be determined by watching his or her body language on a video screen? This is a valid concern. My answer is that while it may be more difficult to pick up on physical cues on a screen versus in person, it can still be done. If a witness speaks softly, pauses before answering or partially covers his or her mouth while speaking, these things are all conveyed onscreen. A witness and his or her lawyer can be viewed simultaneously onscreen to gauge the impact, if any, the testimony is having on counsel. As you can imagine, this is much more difficult to do at an in-person hearing.
In sum, arbitrations conducted via online platforms can work very well, and in certain ways, they can be more efficient than in-person hearings. There is always fear of the unknown, but once you have arbitrated by Zoom, you will see that it isn’t so scary and that it has some real advantages. So give it a try. You may wonder why you waited so long.
Joel Grossman is an arbitrator and mediator with JAMS in Los Angeles.
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