Staying Connected While Socially Distanced: Tips for Conducting an Arbitration during COVID-19
As a result of the COVID-19 pandemic, traditional in-person arbitration hearings are no longer reasonably possible. Depending on the matter, virtual hearings may be a poor alternative for an in-person arbitration. Socially distanced arbitration hearings provide the benefits of an in-person hearing while ensuring compliance with all necessary health care protocols. To assist in developing best-practices, this article provides tips and key considerations learned from a recent experience of conducting a socially distanced arbitration.
As the effects of the COVID-19 pandemic continue to ripple through every sector of society, businesses, governments, and courts have been forced to adapt to, and work within, heath care protocols such as the requirement to stay six feet apart. Private dispute resolution processes, like arbitrations, are acutely impacted by the need to maintain social distance.
Conducting a hearing while maintaining appropriate distance and avoiding all physical contact brings challenges but can also provide parties with the benefits of speed, efficiency, and flexibility that often attract litigants to arbitration instead of traditional court processes. With preparation and the appropriate precautions in place, socially distanced hearings can allow parties to return to in-person hearings while maintaining the speed and integrity of a traditional arbitration process.
This article provides a list of tips and key considerations learned from a recent experience of conducting a socially distanced arbitration hearing. These tips can be applied in order to ensure a smooth and efficient hearing while complying with social distancing requirements.
An Appropriate Location
Prior to the COVID-19 pandemic, when choosing a hearing space, a boardroom with seating capacity that matched the number of individuals in attendance was sufficient. In light of the requirement to stay six feet apart, this is no longer the case. A location space must balance the need to remain physically distant with the need to interact with the witness, the arbitrator, opposing counsel, and members of the same legal team. When choosing a hearing space, the following list provides suggested requirements. The hearing space should:
- be a large room, such as a conference room, with appropriate audio and visual equipment;
- be set up with each party on one side of the room and the arbitrator, witness, and court reporter at the front of the room;
- provide sufficient space to provide each individual with their own desk, six feet apart from all other individuals;
- include a video feed focused on the arbitrator and witness projected in the room so all parties have a clear view regardless of distance;
- have sanitizer, cleaning supplies, and masks readily available at each desk; and
- provide breakout rooms for each party that are large enough to accommodate social distancing within the room.
In addition, throughout the hearing there should be limited movement of individuals and each individual should use the same desk each day. At the conclusion of each day and in between witnesses, all items should be sanitized and cleaned.
Social distancing and the requirement to avoid physical contact often conflict with the traditional and physically-based exchange of documents between parties, the witness, and the arbitrator. While the virtual presentation of documents resolves the conflict between the exchange of documents and social distancing protocols, it comes with its own set of challenges. The following points may assist in minimizing these challenges and associated risks:
- Equip each counsel table, table for the witness, and table for the arbitrator with a screen to display documents.
- Designate one individual to be solely responsible for controlling, locating, and displaying documents on screens simultaneously.
- Set up several large screens in the room where the document is displayed in a large format.
- Obtain agreement from all parties that document IDs will be provided when referencing a document.
- Ensure that the set of documents projected is the same set that all counsel have been working with.
Notably, the time to digitally locate and display a document is longer than the time to simply pass the relevant document to a witness or to turn to a tab in a binder. Therefore, counsel should be prepared for delays and possible technological errors. If digital document sharing is unavailable, parties can make a set of documents for each individual in attendance to avoid cross-contamination.
The necessity to avoid close interactions affects the ability of counsel to engage in quick and confidential communications with other members of their team. Needless to say, in light of current social distancing and masking requirements, leaning over and whispering into co-counsel’s ear is no longer an option. Further, the necessity for six feet of distance between one another removes the ability to easily slide a note to co-counsel.
Using a virtual internal chat will provide the same level of private communication throughout a hearing. Microsoft Teams or Skype chat allows several individuals to be in one chat and exchange instantaneous messages. As repeated message notifications are a distraction, it is beneficial for lead counsel not to be a member of the chat. Rather, the second chair, or another designated individual, should serve a gatekeeper function to filter all but the most important or relevant messages to lead counsel using a separate chat.
Back up Counsel and the Ability to Attend Virtually
Prior to the pandemic, a sore throat, headache, or runny nose rarely warranted counsel missing a hearing. In light of the fact that COVID-19 can vary wildly in presentation and severity, this is no longer the case. Given the requirement to isolate if any symptom of COVID-19 arises, it is imperative that all members of the arbitration team are prepared to step in to conduct any part of a hearing. For all aspects of the hearing, arbitration teams should create a depth chart to designate which members of the dispute team will take over in the event that the primary lawyer for the task becomes unavailable.
Further, while conducted in person, parties should discuss and agree on a method for virtual attendance in case in-person attendance for certain individuals is not possible. Additionally, a virtual attendance method reduces the number of physical bodies in the room. Individuals who are not necessary to the hearing such as clients who are simply observing, can attend virtually to reduce the number of individuals present. For individuals attending virtually, a protocol should be developed to ensure that all participants are muted and only necessary parties are visible.
Sophie Mansfield is an Associate at the Calgary office of Blake, Cassels & Graydon LLP. Sophie practices in the area of corporate/commercial litigation, arbitration, and dispute resolution.