In mediations, the creative use of virtual breakout rooms by an experienced mediator can more easily lead to very productive, smaller joint sessions in the course of the day as a way to narrow the issues and get the right people (e.g., finance, tax) talking to each other if necessary.
In arbitration, pre-pandemic, most of the pre-hearing process involving the tribunal did not require in-person sessions—and the preliminary hearings, status conferences, and even oral argument that used to proceed by telephone can now proceed via Zoom or another virtual platform. When it comes to the hearing, the right attention to certain technology issues permits very focused and efficient attention on witnesses and exhibits.
Third, pre-pandemic, many business clients were already using virtual technology for business meetings—Zoom, Microsoft Teams, Slack, and others. For many businesses, virtual meetings were business as usual, and business people were quite comfortable with the technology. The pandemic has forced lawyers to catch up to what many people in the business world were already doing.
Fourth, the economic hardships created by the current circumstances likely will affect clients for years to come. This type of budget-driven restriction will encourage clients to do everything they can to avoid unnecessary time and cost expenditures on travel and outside counsel expense.
For all of these reasons, practitioners should assume they will do virtual ADR at least to some extent for many years to come. Practitioners should be very deliberate in seeking out all of the training materials published by the institutions and should learn best practices as technology and experience develop. Another implication is that if you have been getting by with just your laptop and natural lighting at home or in your office, it is probably time for you and your clients to invest in upgrades.
2. Virtual ADR Requires More Work: Prepare, Prepare, Prepare
In a fully virtual mediation or arbitration, no one is in the same place, and once the movie starts, it is tough to stop. This means that it will be more challenging to have a quick aside with your client or the neutrals (more important in mediation) or present a new document; breaks will have to be built in. Ultimately, improvisation of any kind is that much more difficult, making thoughtful preparation and choreography a must. Anything that reasonably can be done before “showtime” to set expectations and tee up the dispute should be considered so that the live sessions run smoothly and efficiently.
Mediation is a process that involves a number of steps that happen to include in-person or live sessions. Identifying key core documents, exchanging position statements and information that are important to valuing and understanding the case, and having meaningful discussions with the neutral and business participants before getting together can be critical to the success of the mediation. This can be especially important to ADR that occurs pre-litigation, without the benefit of a complaint, answer, or discovery. But investment in a robust information exchange before any live mediation session, whatever the stage of the dispute, is extremely helpful in narrowing the issues.
All of these techniques are even more important for a successful virtual mediation. In addition, a limited “dry run” test session with lawyers and as many participants as can reasonably participate is critical. How the mediation session will be run (the use of waiting rooms and breakout rooms, how the mediator will enter and leave breakout rooms so as not to interrupt private conversations, etc.) should be dealt with in a granular way in advance of the session.
Similarly, in an arbitration, anything that can be done before the hearing to reduce reliance on the actual virtual hearing should be seriously considered. This can include the usual steps of exchanging and pre-marking exhibits and submitting robust pre-hearing briefs, but it also can include some of the practices more prevalent in international arbitrations, such as the use of witness statements in lieu of extended direct testimony and statements of claim and defense that attach exhibits to be used to establish the facts and expert reports. Every day of the actual hearing must be carefully scripted and timed so that witnesses have a reasonable idea of when they will be expected to join (ahead of their scheduled appearance). Again, limited “dry run” test sessions with the tribunal are critical.
And ask yourself: Can I do the arbitration almost entirely on documents, perhaps with oral argument presentations to the tribunal in lieu of live testimony? The answer can be yes in more cases than you think.
Think Carnegie Hall: Practice, Practice, Practice
As an important subset of preparation, it is critical to rehearse with your client (or a witness) one-on-one. Appearing online in something other than a mere business meeting can feel very odd for clients or witnesses if they have never done it. Have them run through their testimony, or get used to speaking with a practice mediator, in real time in the setting and using the technology that they will be using for the main event—ideally observed by a third person who can concentrate on giving notes. Smooth handling of documents is also greatly assisted by a granular practice session.
Internet Connection—Wired Is Best, but Strong Wireless Will Do
One of the most disruptive (and still frequent) events in any virtual session is the internet instability of one of the participants. The Federal Communications Commission has a helpful publication, “Home Network Tips for the Coronavirus Pandemic” (last updated in July 2020), that clearly explains the issues and gives helpful suggestions for optimizing home network performance. Remember that every step away from a direct Ethernet connection is one step away from your best connection. For important events like a mediation or arbitration, consider asking your clients to connect directly to the internet. Consider mesh Wi-Fi for the best wireless connection. Make sure that your client does any tests with the device using the internet connection that he or she will be using for the proceeding.
In addition to connectivity issues, confidentiality of the internet connection needs more attention. Participants should not join from public networks, for example.
Lighting, Camera Quality, Positioning
The lighting, camera quality, and position of the participant on the screen should permit a clear view of you, your client, and your witness. Sounds basic, but never underestimate the problems that can arise, or, looking at it from a positive perspective, do not underestimate how your client’s performance can be enhanced with the right attention to these details. They don’t give film awards for lighting and cinematography for nothing. Don’t let your client or witness be disadvantaged. Buy them a webcam and a ring light. Think passport photo, head-on visibility. Is your key witness or mediation participant going to be looking off to the side toward a monitor but away from a badly positioned webcam, thereby potentially reducing his or her credibility?
Think twice about having participants share a single computer screen. In fact, don’t do it. It is that much more difficult for a mediator or arbitrator to see two people rather than one person. Each participant—be it for oral argument, in a mediation, or in an arbitration—ideally should be speaking from a dedicated screen.
In addition, remember that sitting glued to a laptop or computer can be physically challenging. It may be time to think about buying a stand-up desk or positioning your laptop on a shelf or high table so that you or your client can participate standing up and can move around a bit more than is possible while sitting.
Always have an agreed way of communicating with your clients, your witnesses, the mediator, and—as appropriate and without ex parte communications—the arbitration tribunal outside of the modality being used for the mediation or arbitration and on a different device from the session. Texts, telephone, and email on a separate device such as an iPhone, landline, or separate computer are the obvious choices.
Give Up When Necessary
Call off the session and schedule another time if someone is disadvantaged by a bad connection that does not resolve. The mediator or arbitrator should be charged with making this call, but you should raise it if needed.
4. Audio and Visual Considerations Involving Formality, Confidentiality, and Transparency
Some clients, particularly those participating from a home setting, will need to be reminded that mediations and arbitrations are confidential, formal proceedings that require their concentration and focus and permit other participants (including the neutral) to concentrate and focus on them in a transparent way that is fair to everyone. Clients and witnesses—and their counsel—should participate from an isolated place in their home—or an office if they are able to get there—away from indoor or outdoor background noise (with the aid of a headset, perhaps) and without a virtual background so that mediators and arbitrators are assured that only authorized persons are attending and the participant is not being helped or coached (by a spouse or an attorney). Some arbitrators will require that a witness pick up his or her laptop and give them a 360-degree view of the witness’s surroundings before testifying. Be prepared.
In addition, it is important to have an agreement regarding when someone is permitted to, or should, turn off his or her video feed and participate only by audio. In mediation, this can be critical as personal interaction will be very important in joint sessions and turning off a video feed can feel like the equivalent of leaving the room to the other participants. In arbitrations, on the other hand, it may be important to request that only those testifying and speaking have their video turned on.
5. Making an Entrance: Documents and Demonstratives
Handling documents and demonstratives is one of the more challenging parts of virtual arbitration and mediation. Much depends on the preferences of your arbitral tribunal or mediator and the technical investment appropriate for the case.
Let’s assume a simple Zoom setup. Using the screen-sharing function is fine for simple document display needs. But there are significant limitations to a single screen in terms of any participant’s ability to absorb information and concentrate on who is speaking if the speaker is competing with a document for attention.
Multiple-screen technologies—for example, one or two external monitors hooked up to your computer or a docking station with the ability to view documents, participants, and perhaps a live feed of transcribed testimony in an arbitration or wall-mounted screens in conference rooms—become more important with more documents and case complexity. Ultimately, the prominent visibility of the witness or mediation participant should be the highest priority.
There is much to be said for continuing to handle documents and demonstratives the old-fashioned way, at least as a backup or adjunct—circulating them in hard copy in advance. This is an important part of accepting the limits of virtual technology. Participating in a virtual business meeting and looking at a PowerPoint online is a completely different exercise from assessing credibility in arbitration or establishing connections in mediation. The more advanced the technology, the more likely that any particular participant will not have it or that something may fail.
All that being said, the ability to draft and edit documents online can be a significant time-saver in mediation (term sheet) and arbitration (agreed stipulation). In addition, some platforms have whiteboard technology that can be used in real time to draw graphs or illustrate points.
As a final caution, everyone will be under pressure going forward to consider and accept hybrid processes in which mediation and arbitration participants are using different modalities—for example, some individuals may be comfortable traveling to an in-person session once they have been vaccinated or surges die down, while others simply may not and will still wish to call in or use Zoom. It is important for the advocate, and neutrals, to consider whether or not a party participating by telephone or video is inherently disadvantaged relative to those participating in person. Ultimately, it may be most appropriate to have all participants using the same communication method—all phone, all video, or all in-person—to ensure that differences in “immediacy” do not affect the outcome.