December 11, 2020 article

Four Tips for Remote Construction Arbitrations: Distance Does Not Have to Mean Poor Communication

Brenda K. Radmacher

With the continued restrictions required by the COVID-19 pandemic, parties, lawyers, and arbitrators are all starting to look at the need to embrace remote proceedings.  However, remote arbitrations are rife with potential pitfalls and challenges, and the distance may severely lessen your ability to communicate and present your case at a remote deposition.

While most ADR rules allow for video presentation of evidence in an arbitration, there is little guidance on full hearings being conducted through remote procedures. CPR has developed a Model Procedure Order for Remote Video Arbitration Proceedings (“Model Order”) as a starting point as a direct result of the COVID-19 pandemic impacts on the judicial systems across the globe.  While parties have often traditionally agreed to present one witness via videotape or videoconference where the witness was not able to travel to the venue of the hearing, most parties, lawyers, and neutrals have been reticent to agree to fully remote proceedings. 

Most litigators rely on their keen communication skills to present persuasive arguments to the trier of fact.  But with a remote hearing, all of this changes – the lawyers and clients are not in the same room, the neutrals’ reactions and body language are opaque at best across a screen, and witnesses and technology may impair the smooth and clear presentation of evidence. Indeed, technical glitches can throw off the most seasoned attorney or expert witness. 

Body language and non-verbal cues are critical to the trial lawyer. In addition, the lawyers in an arbitration often “read” the room – both the neutral and the other parties and counsel present to see how various factual and legal arguments are landing, and the reaction can cause a change in strategy, tone, or emphasis. Non-verbal communication plays an integral part in effective communication, with nearly 70% of all communication being non-verbal. Body language can tell you the urgency or severity of an issue. Eye contact and posture can convey confidence or sometimes lack of it. Gestures and movements can show enthusiasm or communicate more than the words express. “One study from Columbia University found that gesticulation helps a speaker communicate effectively with an audience. Researchers explained that someone who gesticulates actually helps convey the fullness of the message they’re trying to deliver. They’re speaking on two levels at once!” “Business Insider  also revealed some rather telling facts on verbal communication. Those stats showed that content is only valued at 7% in a presentation. This was verified in Science of People’s research as well. We can’t stress it enough – it’s not what you say, rather, how you say it."

However, when the parties are restricted to a computer screen, most of these critical communication issues are hamstrung at best. This is why many lawyers are wary to arbitrate via remote processes – it loses the “feel” of the proceeding where the human interchange and interaction communicates so much more in person across a conference room table than through a screen. The logistics alone of presenting evidence and, critically important in complex construction cases, the exhibits, are enough to stymie even a seasoned litigator.  In addition, when the clients and lawyers are in separate locations, conferring and coordinating to review the evidence and develop strategy during the course of the hearing is a challenge. 

Based on some recent experience with remote arbitration proceedings, there are several tips that practitioners and parties can employ to bolster their arsenal in a remote arbitration proceeding to ensure the best result.  While the remote arbitration process is not an equal substitute for live and in person proceedings, by taking some advance measures, the challenges of remote proceedings can largely be overcome.

Four Key Considerations for an Effective Remote Arbitration

As more cases are presented through remote arbitration (potentially jury trials in the near future), there are several considerations that practitioners should keep in mind to ensure the most effective representation of their clients. Of course, reams have been written about communication skills and styles, but there are four key considerations for a remote arbitration proceeding to consider: (1) understanding your audience; (2) getting the evidence to your arbitrator; (3) controlling the room; and (4) managing the technology.

1. Understanding Your Audience

While it is important to know your arbitrator’s background, most counsel are not vetting the neutral’s ability to use technology or how the neutral will be able to engage in the process over video or control the proceedings and witnesses.  This is a difficult skill to assess. However, many arbitrators have been working diligently to get up to speed on the technology and have familiarized themselves with the various platforms.  Once more remote arbitrations occur, some neutrals will likely further distinguish themselves in their abilities to manage remote arbitration hearings.

Don’t let the age or background of a neutral be your guide, however.  There are many younger neutrals who are not adept in using the remote programs and older neutrals who are tech savvy and have every cutting edge device available.

Regardless, it is imperative to know and understand who your arbitrator or panel is and then work with your neutrals to ensure that they feel comfortable with the process, the platform, and the related technology needed, such as the right video camera(s).  Before you begin a remote hearing, if the arbitrator does not ask for it, request a joint session to practice on the platform, including ensuring that the arbitrator understands and knows how to control the process and that all can access and view the exhibits effectively. You may wish to have a technology person available for the practice and the remote hearing itself to assist the arbitrator.

For the evidentiary hearing itself, you should prepare the “room” just as you might do so in person.  Instead of setting up counsel tables, you will need to focus on the location of the video camera and ensure that your witnesses are able to be seen and heard, and that they know where to look (not at the screen or themselves but at the camera).  You will want to practice to ensure you know how you want your screen set up so you can view the images of the witness, opposing counsel, and the neutrals.  Fine tuning the opposing witnesses’ technology may also be necessary and working in advance with opposing counsel and your arbitrator is highly recommended.

These issues can be addressed in the preliminary order by requiring the parties and witnesses to appear for technology checking before the hearing, and calling out specifics for what the arbitrator will want for any witnesses to appear remotely and what happens if there are technology glitches (if a witnesses’ video is not working, do you continue examination with audio only or is the hearing suspended until the technology fix is made?).  A suggestion for language to include in your Order to address these issues is as follows:

Counsel, arbitrators, the parties, witnesses, and stenographers/interpreters/other third parties shall all have a device (desktop, laptop, or tablet) and have access to high speed broadband access during the hearing. The speed needs to be sufficient to support the reasonable functioning of the platform being used for this hearing. In addition, each participant must use the latest version of operational software and have a second method of connecting to the video conference (such as telephone, and the telephone number must be communicated to the Tribunal and the participants in advance of hearing) in case the primary means of connection fails, in order to notify the hearing of any connectivity failure. In such a case, the Tribunal may postpone the proceedings until the connectivity issue is resolved [or continue the proceedings by telephone conference only]. It is the duty of all participants to alert the Tribunal if a participant becomes aware of any connectivity issues of any other participant.

2. Getting the Evidence to the Arbitrator

Be sure that you have worked with the arbitrator to have all of the proper procedures and rules in place to allow for an effective remote hearing as well as to ensure that you can get the necessary evidence to your arbitrator.

Do the Rules Provide for What You Need?

Each of the main arbitration providers’ arbitration rules have some rules that address – at least in part - virtual hearings. However, the perceptive practitioner will review the rules and scheduling order carefully to ensure that the evidence needed can be effectively presented. Notably, there is little formal guidance currently for a full merits hearing by internet or other remote presentation. 

JAMS Rule 22(a) acknowledges that an arbitrator may vary procedures so long as they are reasonable and appropriate. Rule 22(g) authorizes an arbitrator, at his or her discretion, or upon the parties’ agreement, to conduct the hearing through virtual platforms, stating: “(g) The hearing, or any portion thereof, may be conducted telephonically or videographically with the agreement of the Parties or at the discretion of the arbitrator.” Like JAMS, the American Arbitration Association is mindful of maintaining the efficiency of arbitrations while securing the parties’ rights to be heard and to present their cases (See, R-32(a), AAA Commercial Arbitration Rules and Mediation Procedures). Rule 32(c) gives the arbitrator the right to “allow for the presentation of evidence by alternative means including video conferencing, internet communication, telephonic conferences and means other than an in-person presentation” but also requires that “[s]uch alternative means must afford a full opportunity for all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute and, when involving witnesses, provide an opportunity for cross-examination.”

Neither the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), nor the Singapore International Arbitration Centre (“SIAC”) provide any specific rules for full merits hearings by video. As noted above, the International Institute for Conflict Prevention & Resolution (“CPR”) has developed a Model Procedure Order for Remote Video Arbitration Proceedings. This Model Order gives suggestions on general guidelines such as (a) platform selection, (b) use of a remote video support provider or designation of the parties or Tribunal to handle trouble-shooting; (c) allocation of costs associated with the remote support functions; (d) preparation of the equipment including checking internet capability for all involved and equipment compatibility, having multiple screens, types of headphones and microphones, issues involving use of a stenographic transcript); (e) training and test sessions; (f) the law to apply in regard to oaths and adequacy of witness equipment; (g) addressing interpreter approach and timing; (h) specific requirements for compliance during the proceeding as far as log on timing, time zones to be used, designation of hearing location (and impact on any choice of law issues); (i) emergency notifications and back-up plans for technology or security issues; (j) identification of participants and confidentiality issues including recording, witnesses sitting in on other testimony and how to ensure that the agreed upon procedures are followed; and (k) exchange and presentation of evidence and exhibits.  The Model Order raises may of the key issues but does not provide guidance on how to address the issues as it may vary by case.

Counsel should seek a scheduling order with specific details on how the proceedings are to be conducted including the split of time, presentation of witness testimony and hearing timetables, production of exhibits, and opening and closing statements. 

Getting the Witness Testimony Clearly Communicated

Many practitioners are concerned about the ability to test the credibility of witnesses in a videoconference format. However, this issue can be overcome with careful preparation of the witnesses, and having clear rules in the scheduling order addressing where and how witnesses can be presented (ensuring there is no coaching or others in the room).  In fact, many arbitrators assert that credibility issues are not as critical as many lawyers may believe. The arbitrator will still be able to observe the witness during video testimony and observe facial expressions and reactions. In fact, as stated by arbitrator Wayne Brazil, “We can see initial reactions to questions, reluctance to respond, indirection, indecision, circularity, obfuscation — as well as forthright, straight-on answering (which, we've learned, sometimes can pose the greatest threat to making accurate findings). Given these facts of videoconferencing life, the real question is this: How much is an arbitrator's ability to assess credibility compromised, really, when he or she watches a witness testify, live, on a big screen, instead of watching the witness testify a few yards away in person?”

Instead, when it comes to witness testimony, you must ensure that you are preparing your witness to testify to the arbitrator – but instead of looking at the small screen of the questioning lawyer, the witness needs to be trained to look at the camera on his screen.  When reviewing an on-screen exhibit, the witness should also be trained to periodically look up at his or her camera to respond to the question. One tip is to advise witnesses to imagine the arbitrator is “in the camera” and to focus on that instead of the small box of the questioning attorney. Put a Post-It with an arrow pointing to the camera.

Practice examination (if your rules allow for it) using the video technology to enhance comfort. Choose your wardrobe colors, check your background, and seek a quiet spot.  Blue is often recommended as the best color on camera for most complexions.  Lighting is critical – the best option is to have a lamp behind the camera and shining toward the face of the witness or counsel. Be wary of reflection of glasses and try to set up the lighting to avoid shadowing the witnesses’ face to ensure credibility is enhanced.

Who Has Control – Remote Exhibits

One of the most important issues that is a difference for many practitioners is the handling of exhibits in a remote proceeding.  Depending on the agreement of the parties, the exhibits can be exchanged in advance between the parties and a set provided to the arbitrator electronically for use during the hearing, or the exhibits can be uploaded onto the remote proceeding site.  If the exhibits are exchanged in advance, a set will also need to be provided to the witness in advance; it is recommended that they be placed in a sealed envelope to be opened by the witness on screen once under oath. 

If the exhibits are presented “live,” the question of how to maneuver through the document can be handled by giving the witness “control” of the screen and mouse to scroll through to specific portions of the document. To do this effectively, counsel will need to have carefully prepared the documents and have a separate copy either in hard copy or on a second screen to ensure a crisp and clear presentation of the information to the arbitrator.  Depending on how the share screen works, be aware that if counsel is presenting the exhibit from their screen, they will be unable to move through the exhibit without taking down the exhibit. So, having a clear, pre-planned road map of questions to ask on an exhibit is critical for a smooth examination.

Cross-examination and introduction of exhibits that were not pre-planned will be a bit more challenging in a remote setting.  However, having a set of potential exhibits pre-marked can address this issue. For rebuttal, one good option is to have anticipated potential exhibits saved on your desktop and carefully described/labeled with your prepared cross-examination.  Counsel should practice in advance of the hearing uploading the exhibits and while asking questions.  If appropriate, particularly for document-intensive cases, like many construction cases, having a paralegal or technical assistant participate and upload your exhibits will make the process more streamlined and prevent counsel from distractions of trying to find the right exhibit. 

3. Issues Raised By Who Is “In The Room”

One other question to consider before you proceed with the arbitration hearing is how to maintain the confidentiality of the process and who will be allowed to be in the videoconference and when. Will witnesses be held in a “waiting room” and be admitted when their time slot is ready?  Will counsel have pre-set times for when witnesses will be called? Will witnesses be called out of order? These issues will require a discussion of counsel and the arbitrator to resolve these issues in advance.  Parties may want to seek to have a pre-agreed upon stipulation that all witnesses sign under penalty of perjury. For example, you may need a provision in the Order that provides, “For purposes of the remote hearing, all participants shall have their video cameras on at all times during the hearing while on the record. Any participant who does not have video capability or would like to appear by audio only may request prior approval from the Tribunal. Each witness shall attest under oath that no other persons are present or communicating with the witness other than those on the other remote screens. Violation of these provisions may be grounds for a finding of misconduct or a basis for sanctions at the discretion of the Tribunal.”

4. Technology - Choose the Platform

What platform will be used is another consideration that will need to be agreed upon early on. This will allow counsel sufficient advance time to practice and be familiar with the platform. In addition, you can work with your witnesses to practice, particularly with how to work with the exhibits and how to readily find sections on the documents in response to questions posed.

One key issue is to anticipate and plan for technology hiccups.  Have a designated person for trouble-shooting on standby to jump in and have a ready text message to bring them into the call. In addition, be sure that the arbitrator and counsel provide and exchange contact information and the arbitrator should also be provided contact information for all witnesses in case of connection issues.  You also may want to consider having a fall back of what to do if there is a problem with connection for any particular witness – will you have them dial in only or require webcam access? Thinking through and having a backup plan will give you more peace of mind and take away the distractions during the hearing.

Conclusion

Overall, conducting a remote arbitration is not the most ideal scenario, but effective lawyers can prepare their witnesses, ensure clarity and credibility of their cases and presentations by being aware of use of non-verbal communication to support their cases, and pre-planning and preparing exhibits carefully and having a plan in place for maneuvering through exhibits to ensure that the information you want the arbitrator to see, understand, and digest.  In addition, paying careful attention to the technical details and discussing how the witnesses will be presented will allow for a smoother process where the more confident counsel’s case can be effectively presented to the arbitrator or tribunal.

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Brenda K. Radmacher

Gordon Rees Scully Mansukhani, LLP, Los Angeles, CA