Virtual/Remote Arbitration Hearings Part III Points for Attention during the Virtual Arbitration Hearings

“The turning point in the lives of those who succeed, usually comes at the moment of some crisis, through which they are introduced to their ‘other selves’” – Napolean Hill

Q: During the hearing, can the participants turn on and off their microphones or their cameras randomly?

A: According to the arrangement of the tribunal, the participants could turn on and off their microphones in turns. For some hearings which involve more than 9 participants, the tribunal may consider to discuss with the participants to seek the agreement on turning off the non-speaking participants’ cameras in order to reduce the technical issue and to protect the tribunal’s concentration from unnecessary interruption. On the other hand, the tribunal assistant, the IT consultant and the court reporter may turn off their cameras with the consent of all parties during the hearing.

Q: What if some participants are disconnected unexpectedly?

A: The disconnected participant should call the tribunal assistant immediately to report this issue as well as the time he/she needs for reconnection. The tribunal assistant should report this situation to the tribunal in timely manner so that the tribunal could manage the proceeding accordingly. It is worth to mention that the participants of virtual hearing should consider to be equipped with some portable WiFi devices during the virtual hearing so that they could reconnect rapidly if the disconnection happens.

Q: What if the dog barks, the kids scream and some other unpleasant interventions happen during the hearing?

A: This is normal! To minimize the disturbance from the noise, it is recommended that the participants could choose physical rooms that are completely enclosed and separated from non-participants and that the participants should use headsets with microphones throughout the hearing. Even if it happens, the participants will have to keep concentrated regardless of the unpleasant interventions. In this regard, the pre-hearing testing and case management calls are extremely important in setting expectations.

(See Covid-19 Canada: Closing Arguments by Video Conference – The Show Must Go On, April 8, 2020)

Q: Where should I look at?

A: The short answer is your camera. It is also acknowledged that the counsels would like to see the arbitrators’ reactions while they are pleading. Thus, the counsels should make sure that they could see the camera and their screen at the same time. The counsels could arrange their screens and their webcams in a way that allows them to appear to be looking into the camera – and therefore at the tribunal or the witness – while in fact looking at their notes, or at the screen on which the witness or tribunal appears. One resolution can be to have two screens arranged on above the other, with the webcam positioned between them.

(See Advocacy in virtual arbitration hearings – a practical guide, June 22, 2020)

Q: Should the tribunal use an expanded witness oath/affirmation?

A: It seems to me that it is more challenging for the tribunal to evaluate a witness’ credibility because the witness’ appearance, especially the eye contact and the body language, is highly restricted by the angle of view and the angle of coverage of the camera. For example, the tribunal may not “see” if the witness utilizes “crib notes” during the testimony. Thus, “Do you solemnly swear or affirm that the evidence you shall give shall be the truth, the whole truth, and nothing but the truth?” is not sufficient for virtual arbitral hearing. The tribunal, according to governing laws of the arbitration, could add the following two sentences in the witness oath/affirmation: “Do you solemnly swear or affirm that you shall respect the confidentiality of the hearing? Do you solemnly swear or affirm that you shall not use any forms of assistance when you are testifying before the tribunal?”

On the other hand, if the witness can go to the arbitral institution to testify in the virtual arbitral hearing, the tribunal will need to know the individual who is present in the same room of the witness’. The witness shall not turn off the camera or the microphone during his/her testimony. If the witness is not accompanied by any person, the counsels should mail a sealed package of exhibits to the witness when necessary and ask him/her to open the sealed package on camera in front of the tribunal at the beginning of his testimony. It is always recommended that the documents in the package could be organized in a way that the witness can find the targeted document effortlessly during the testimony.

(See  Art. 6 of the CIETAC Provisions on Virtual Hearings (Trial) and “Virtual Arbitrations/Trials – Should You Use An Expanded Witness Oath?”, May 21, 2020 and See also Appendix A of Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta2020 ABQB 359 for the “Preliminary Questions (after oath/affirmation)”)

Q: What if you find that the tribunal is not giving you any feedback?

A: The counsels should not ignore the fact that the tribunal’s attention span may probably be shorter than during in-person hearings. To avoid this risk, the counsels could suggest more breaks during the virtual arbitral hearing. Furthermore, the counsels may consider to keep their arguments simple, clear and strong and try to “distil their arguments into bite-sized pieces” during the virtual arbitral hearing.

(See “Basics of Good oral advocacy more important in virtual hearings, says Alberta chief justice“, June 1, 2020)

(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. ?)