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Virtual Arbitrations: Key Considerations

Significant portions of our daily interactions have shifted from in-person to virtual - perhaps permanently. This includes arbitrations.

Virtual arbitrations: key considerations for efficiency and success

After more than a year of pandemic, significant portions of our daily interactions have shifted from in-person to virtual – perhaps permanently. We’ve adapted and we’ve kept going, despite myriad challenges, but that fact hasn’t brought about the end of disagreements. “Keep going” also means “keep negotiating,” which means that arbitration, just like everything else, has gone virtual. But how does that work? How do you bring people together and help them reach a compromise when people can’t be in the same room?

The hallmarks of greatness

More than anything, to successfully engage in a virtual arbitration the parties need support from a great firm that understands the challenges and has practical experience in overcoming them. So what makes a great firm great?

First of all, great firms are agile.

They can manage any type of case, from construction defect to product liability, whether local, national or international. Second, they focus on service – and in the context of an arbitration, that really comes down to preparedness. Making sure clients are comfortable working with the trial technician so they can put their best foot forward during the proceedings. Coordinating practice sessions so everyone knows what to expect and everything goes smoothly. Making sure everyone understands how the arbitrator wants the proceedings to be handled – for example, does everyone have their camera on, or do only the questioning attorney and the witness have their camera on? Even subtle factors like dialects, accents, and jargon can become roadblocks to effective communication – and a great firm will have the experience to prevent that. It’s all about creating the best possible environment for the meeting so that everyone can work on resolving the issues at hand.

Second, great firms know how to handle the nuts and bolts.

They focus on preparedness, making sure participants’ individual workstations are set up well in advance and that participants know how to use their equipment and the platform – how to join the session, how to mute and unmute themselves, how to turn on their camera.

And then there are the procedural factors. Virtual arbitrations must follow specific rules, and the arbitrator will identify and communicate those rules and expectations to everyone involved. The support team is responsible for ensuring that everything that takes place throughout the proceedings is aligned with those  expectations – for example, making sure witnesses are sworn in according to the requirements of the applicable jurisdiction. 

Of course, time is of the essence in arbitrations – which is why preparation and support are so important. Well before the actual arbitration session, the firm should prepare all the relevant documents and exhibits, and make sure they are uniquely named so that the technician can pull them up quickly.

More than that, the technician should be an expert with the technology. It’s their job to make sure the technology supports the proceedings – once the attorneys, witnesses and the arbiter are all online and the session is underway, there’s no time to fiddle around with the software. A great firm will have made sure that any and all technical challenges have been addressed well in advance of the session, and the technician will be well prepared to pull up the requested exhibit, highlight specific sections, and zoom in on key areas as directed by the attorneys. 

A great provider can also be a tremendous asset when it comes to handling the logistics. They will take care of sending out links to the meeting, putting participants into breakout rooms when they need to confer, and generally providing support and assistance throughout the meeting. Importantly, they will also act as a neutral third party: technical issues are inevitable, and having an outside support team prevents either side from gaining an unintended advantage if an issue occurs. It also allows the parties to focus on presenting the case and managing the various aspects of negotiation, rather than worrying about the nuts and bolts of running the session.

Finally, great providers make it a point to establish trust –  a critical element in a successful remote arbitration. By the time the proceeding starts, everyone involved should be completely confident that everything is going to go smoothly, and it’s the responsibility of the support firm to start building that trust on day one and keep nurturing it all throughout the preparation and training stage and even during the session itself.

Choosing the right platform

Almost without exception, the firm you choose is actually much more important than the platform. A good support firm is familiar with all the common platforms –  what matters most is the training and support you receive.   

That said, it’s still important to select a platform that’s appropriate for the matter. Security is a key factor, regardless of whether it’s an arbitration, deposition, or mediation, because the technician has to have control over what participants can do while they’re in the videoconference. Each session has to have a unique meeting ID with password, and the ability to enable a waiting room is also important: it allows the technician to confirm a participant’s identity and provide specific instructions. For example, the technician will typically ask all participants to check their screen name so they’ll be properly identified throughout the session. 

Even something as simple as the ability to disable direct, one-on-one chatting is crucial – yes, it helps prevent witness coaching, but more importantly, it gives everyone confidence that witness coaching can’t occur, and user confidence can make all the difference in a virtual arbitration. No matter which platform parties select, the attorneys, witnesses and arbiter all have to be comfortable and confident in its security and functionality. It should be a tool they trust, with a well-designed, robust feature set that’s easy to use, and should be able to connect via computers, tablets, smartphones – whatever kind of device they prefer –  from anywhere in the world. 

Additionally, the platform should be able to accommodate everyone – most can support up to 500 participants – and ideally, it should offer virtual breakout rooms so that witnesses and counsel can meet with the arbitrator without leaving the conference. However, access to breakout rooms should be limited, and as previously noted, the trial technician should be able to control that access. 

The ability to stream real-time text and unedited drafts of the transcript is also useful, and being able to offer the option of using is valuable in any scenario where extra security is important – it’s FedRAMP authorized, which means it has met strict criteria for security and risk assessments as defined by the government and the Department of Defense.

Virtual arbitrations: wave of the future, or temporary pandemic workaround?

Every process has its flaws – virtual arbitrations are not  always perfect, but in-person arbitrations are not perfect either. The most important thing is that all parties receive excellent support, and that all proceedings and activities are handled ethically. As an industry, our use of technology has evolved tremendously over the last ten or fifteen years. But during the pandemic, it has become instrumental to our ability to support our clients and help them move their cases forward. And that’s largely due to the fact that we identified the keys to success really early on: security, logistics issues like properly swearing in remote witnesses, managing exhibits, and preservation of the record; and the importance of establishing and nurturing trust. 

More than anything, though, everyone loves efficiency, and from an efficiency standpoint, the ability to schedule witnesses remotely is a huge time and money saver. So while there will always be situations where in-person arbitration is more appropriate, given all these factors, it seems clear that virtual arbitration is here to stay.

Kim Kepler
Director of Court Reporting Services