November 10, 2020 Practice Points

Ten Tips to Ensure Your Virtual Arbitration Goes Smoothly

How to successfully hold a virtual hearing and avoid pitfalls that may give rise to technological challenges.

By P. Jean Baker

Whether you are representing a client or serving as an arbitrator, there are ten things you need to know in advance of the arbitration hearing to ensure a successful outcome.

  1. Start with a solid procedural plan. The posted/tested guidelines of the American Arbitration Association (AAA)-International Centre for Dispute Resolution (ICDR) or another provider can serve as a useful checklist that can be applied or modified as required and used during any proceeding—be it self-administered by the arbitrator or administered by a third party, such as AAA.
  2. Utilize the right equipment. The functionality of a specific platform can be negatively impacted by the equipment that is used. For example, full functionality is not available on the Zoom platform when using an iPad or iPhone. If using a MAC computer, do not rely upon the Windows based instructions provided in most online Zoom Tutorials.
  3. Utilize a secure enterprise grade high-speed internet service. Internet speeds slower than 20 megabytes per second will reduce the quality of both the video and the audio. Joining via a hard-wired connection is preferred, but if you must connect via WiFi, use a virtual private network service provider.
  4. Select the appropriate functionality settings. Most online videoconferencing platforms were not designed to host legal proceedings. Each platform has its own functionality settings. Based on AAA’s extensive experience using Zoom, appendix A of the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties Using Zoom provides guidance on how to set defaults in Zoom to facilitate a private virtual hearing. Use these recommendations as a guide when considering using another virtual platform.
  5. Understand exactly how to implement a default setting. For example, AAA recommends that the co-host function in Zoom always be turned ON. If this function is turned OFF, and an arbitrator loses his or her internet connection, Zoom will randomly designate a hearing participant to serve as the host. To prevent this from happening, an arbitrator should designate someone to serve as the co-host—either another member of a panel or someone agreed to by counsel.
  6. Constantly monitor for functionality changes. AAA recommends turning ON the group chat function in Zoom, while turning OFF the private chat function to prevent ex parte communication between a party and an arbitrator. Recently, Zoom implemented a new in-meeting functionality setting that allows a participant to send a private chat to the host. This change could create a serious problem if an arbitrator is hosting a hearing.
  7. Take necessary security precautions. The platform selected by the parties must have a mechanism that will prevent unauthorized intrusions i.e “zoom bombing.” On Zoom, for example, participants remain sequestered in a virtual space or a “waiting room” until someone confirms he or she is authorized by the arbitrator to join the hearing.
  8. Conduct a pre-session technical test before the scheduled hearing date. Ideally the pre-hearing test should mirror exactly the video and audio set up that all participants will be using on the day of the hearing. This is essential if a participant plans to connect via a different video and audio source or plans to participate solely via audio. 
  9. Know how to best record the hearing. AAA recommends that all the recording defaults be turned OFF and only activated prior to the start of a hearing if agreed to by the parties. The parties will need to decide whether they want the recording to serve as the official record. For security reasons, AAA recommends that recordings be saved in the cloud and that a number of security defaults be activated. For example, that a password be required to access a cloud recording; that a deadline be set for downloading a local copy and recordings be automatically deleted after an agreed upon period of time. If the dispute involves issues related to The Health Insurance Portability and Accountability Act (HIPAA), a HIPAA compliant Zoom license must be used by the hearing host and the recording must be saved on a local device.
  10. Avoid frequently encountered problems with passwords. Most connection problems involve incorrect password entry. Thus, make sure you are aware of these issues: if a participant does not join via the one-click option on the Zoom invitation, they must jot down the password before clicking on “join the meeting”; if a participant is cutting and pasting the password, they cannot leave spaces; and if the password starts or ends with a zero, a participant must include the zero. Also, participants should know that each day of a hearing has a different Zoom meeting ID and password and that a participant’s telephone number must be entered as the password when joining solely via audio.

P. Jean Baker is a vice president with the American Arbitration Association in its Washington, D.C., office. 


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