© Lou Chang ALC. 2020
Notice of Offer of Videoconference to the Parties:
Lou Chang Mediation and Arbitration offers the option of videoconference hearings when that may be a necessary or desirable alternative to the traditional in person hearing. This option is encouraged when there are health and safety considerations or when earlier hearing dates are needed or there is an interest in minimizing travel expenditures. The videoconference is conducted via a web-based software that comes at no cost to the parties. The parties simply need to have a desktop or laptop computer with a webcam. All parties and witnesses can be in the same location, just as if the arbitrator were there in person or each party can be in its own location. The videoconferencing technology allows all attendees at the hearing to be seen and heard.
The overall goal of having hearings via video conference is to have a fair, efficient and adequate hearing which assures that all parties have a full and fair opportunity to present their respective evidence and arguments.
Flexibility of process.
Hearings and pre-hearing conferences conducted by videoconference need to be customized and adapted to fit party needs and the specific circumstances of each case. Parties and the arbitrator should confer and determine how best to conduct a productive and fair process. Hearings and pre-hearing conferences can be effectively conducted remotely in a number of different settings:
• The arbitrator can be in one location and the parties and their witnesses together in another;
• The arbitrator and the parties can be together in a hearing room, but otherwise unavailable witnesses can testify remotely;
• The arbitrator can be in one location, one Party and its witnesses in another, and the other Party and its witnesses in yet another; or
• Any combinations of the above.
There are several ways to participate in the videoconference: by desktop computer, laptop, tablet, smart phone, or by regular landline phone. Those who have computers, tablets, or smart phones, can participate fully. Those who don’t have video capability can participate like a regular telephone conference call. Persons participating by desktop computer, laptop, tablet, smart phone can participate at no cost. Persons participating by telephone may, if they are calling long distance, incur telephone long distance charges.
There are many publicly and readily available videoconferencing technologies. They include Zoom, Microsoft Team and Go To Meeting. The one that appears to be most popular is Zoom. Zoom is the videoconferencing technology primarily used by Lou Chang Mediation & Arbitration. Zoom offers many features which can be adapted and tailored to accommodate a multiplicity of needs and situations. Some of its primary features that are suitable for the conduct of an arbitration hearing or conference include the following:
1. Meeting Room. A general meeting space where all participants can see and hear each other;
2. Breakout Rooms. Private meeting spaces for private and confidential discussions with only the parties in the breakout room able to communicate with each other. For example, breakout rooms can be set up for each party, allowing Counsel and client to have confidential discussions. Participants in a Breakout Room can speak freely with each other and use the Chat window. These messages and communications cannot be seen or heard outside of their Breakout Room. Additional breakout rooms can be utilized for the arbitrator and counsels to have a private
sidebar discussion and to have a witness excluded from the hearing room while the arbitrator and Counsels address a sensitive objection;
3. Waiting Room. A meeting space where persons can be placed until it is appropriate for that person to enter the general meeting room. It can also be used to place (sequester) a witness who is yet to testify in a witness room until the parties are ready to hear the witness’s evidence;
4. Screen Share. Allows participants to share a document, video, photo or website that is on their computer for all parties to see;
5. Chat. A messaging utility that allows participants to share a chat comment with all participants or with only a designated participant;
6. Raised Hand. An indicator that a participant wishes to make a comment or ask a question; and
7. Announcements. The host of the videoconference, generally the arbitrator, has the ability to communicate a general announcement (such as an announcement to resume the hearing) to all participants or to request an opportunity to enter a breakout room (like a knock on the door) where participants may be having a private discussion.
There are multiple security features in the Zoom video conferencing platform. The attendance and participation of persons can be controlled. Participants are provided with a unique meeting conference number which will allow them to join the videoconference. In addition, as an additional layer of security, participants can be given a second password which will be required to gain access to the videoconference.
The hearing process.
The conduct of an arbitration hearing by videoconference is quite similar to the process followed during in person hearings. The presentation of opening statements, discussion of stipulations, presentation of witnesses, conduct of direct and cross-examination and the handling of objections are essentially identical. Videoconferencing technology does however require some adjustments. Participants need to be a little more careful and patient to not talk over one another and to allow a speaker to complete a statement before offering another statement.
Documents and Exhibits
Attention needs to be given to the effective handling of documents and exhibits in a hearing conducted by videoconference. Document management is critical to the success of videoconferencing procedures. Parties should address and agree on the desired process to provide access to documents and exhibits during the course of the hearing. Documents and exhibits may be emailed to the arbitrator and opposing advocates, provided by zip drive, thumb drive or CD or provided by hard copies. Document sharing utilities such as Dropbox can also be considered. Exhibits should be identified, tabbed and internally numbered or Bates stamped for ease of reference. A comprehensive exhibit list should be provided. If witnesses will not be with the advocates, arrangements should be made to get exhibits to them in advance. Additional documents, such as rebuttal or impeachment documents can be provided later at the appropriate time and shared by email, fax or screen share functions available in the Zoom system.
Remote witnesses are subject to the same limitations as live witnesses in the hearing room. Arrangements must be made to assure that witnesses will have access to the necessary exhibits related to their anticipated testimony. Documents necessary for direct and cross-examination need to be transmitted to the witness (if the witness is at a remote location from the hearing site) prior to the date of the testimony by the witness. Such exhibits can be separated in sealed envelopes clearly marked as “Direct Examination” and “Cross-Examination” with instructions as to whether they are permitted to review the exhibits before their testimony or whether the envelopes containing the exhibits are not to be opened until the witness is directed to do so at the time of providing testimony during the hearing and in the view of those present. Remote witnesses should be instructed and encouraged to be in a private and quiet place when providing testimony and to confirm that there is no one else present in the room, that they are not consulting any documents not provided by counsel during direct and cross examination and that there is no one capable of overhearing the testimony of the witness.
Parties should discuss and confirm whether a court reporter is desired. If so, court reporters should be consulted and engaged in the planning and preparation process. Parties should determine the needs and preferences of the court reporter to assure that the court reporter can prepare a proper record of the proceedings. Except for the court reporter’s preparation of a record of the proceedings, no other audio or visual of the proceeding is permitted.
Before any scheduled videoconference proceeding, all participants should conduct an equipment check and pretest to confirm the suitability and appropriate operation of the computers, cameras, microphones and internet connections to be used. Practice session or sessions with advocates and the parties should be considered. This permits the key individuals to experience how the videoconferencing works. The practice sessions are an excellent opportunity to try out the different features – e.g., Breakout Rooms, excluding a witness, communicating during a breakout session, privacy issues, recording, exchange of documents, the Chat feature, etc. It is good practice to have backup and contingency plans to accommodate any technological glitches or other problems that may occur during the course of the proceeding. Parties should have the direct email, text and contact numbers of the person(s) to contact in the event of a problem.
With practice and good preparation, the goal of having a fair, efficient and adequate hearing process can be assured.