Incorporating Videoconferencing Technologies for Mediations and Arbitrations: A New Necessity in a Pandemic Environment
The disruptions, delay, health and safety concerns caused by the present pandemic crisis are compelling us to adapt and find new ways to relate, communicate, be productive and do the work that needs to be done. In a history making departure from tradition, the U.S, Supreme Court on May 4, 2020 held its first oral argument by means of telephone conference. On April 24, 2020, the Hawaii Supreme Court issued its historic order directing the use of remote technologies to carry out the necessary work of the state courts. The Court determined that “hearings using available technologies should occur to the maximum extent possible in order to limit in-person contact during this time.” The Court’s Order suspended existing rules in order to “allow telephonic or video conferencing hearings to the maximum extent possible in civil proceedings in the circuit courts”. For the unforeseeable future, the formal work of the courts will be incorporating the increased use of telephone and video conferencing technologies.
The work of lawyers and increased usage of such technologies will also change and characterize the ADR world. Mediations and arbitrations conducted in person and in real time are customary, comfortable, dynamic and effective. Yet, there are times when in person meetings are difficult to arrange and coordinate. Distance, busy schedules, time and travel costs and health and safety considerations require consideration of conducting arbitrations and mediations through a combination of traditional in person meetings, email, telephone and videoconferencing technologies. The use of video and telephone technologies for “online” mediations and arbitrations have been done effectively for many years in many sectors and arenas. Improvement and advances in telephone and videoconferencing tools have helped to make meetings, collaborations, hearings and group activities easier and effective. Given recent concerns, the conduct of arbitrations and mediations through the use of video and telephone technologies will likely become more common and mainstream.
Most of us are comfortable with conducting meetings, discussions and formal hearings by telephone conference. Fewer of us have the same degree of comfort with videoconferencing, which with a little practice and experience will likely become just another productivity tool of everyday life and commerce.
There are several ways to participate in a videoconference: by desktop computer, laptop, tablet, smart phone, and 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. With today’s technologies, people can participate at nominal or virtually no cost.
There are many publicly and readily available videoconferencing technologies. They include Zoom, Microsoft Team, WebEx and Go To Meeting, among others. 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 mediation and arbitration meetings and conferences include the following:
Meeting Room. A general meeting space where all participants can see and hear each other;
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 feature. These messages and communications cannot be seen or heard outside of their Breakout Room. Additional breakout rooms can be utilized for the arbitrator or mediator, parties and counsels to have private and confidential discussions;
Waiting Room. A meeting space where persons can be placed until it is appropriate for that person to enter the general meeting room.
Screen Share. Allows participants to share a document, video, photo or website that is on their computer for all parties to see;
Chat. A messaging utility that allows participants to share a comment with all participants or with only a designated participant;
Raised Hand. An indicator that a participant wishes to make a comment or ask a question; and
Announcements. The host of the videoconference, generally the mediator or arbitrator, has the ability to communicate a general announcement 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.
Privacy and Security.
With the expanding usage of videoconferencing technologies, data sharing, internet hacking and “Zoombombing” incidents have occurred. Zoom has adopted and implemented changes to provide for increased data security. Zoom videoconferencing can accommodate group meetings of hundreds and thousands of participants. Initially, Zoom utilized a 10 digit numerical code which participants could use to access a Zoom meeting. Users sometimes widely publicized their public meetings and published the meeting access code. Anyone with access to the 10 digit numerical code could access the public meeting and could attempt to disrupt the meeting if they choose.
To address this problem, Zoom recently implemented multiple security features for its video conferencing platform. The attendance and participation of persons can be controlled. Participants are provided with a unique meeting conference number plus an additional private access password as an additional layer of security. Participants can also be required to enter into a Waiting Room until the meeting host is able to greet the participant and affirmatively allow the participant to join the meeting or assign the participant to a designated Breakout Room. Use of screen sharing and chat features can be restricted only to the host and designated and authorized participants. Meetings can be locked to further entry by uninvited persons. These multiple security features should adequately protect the privacy and confidentiality of a mediation process.
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. We are in a new time and facing new challenges.
With practice and thoughtful preparation, having productive and successful arbitration or mediation can be assured.
Here are some recommended resources on video conferencing and ADR:
AAA-ICDR® Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM
FREQUENTLY ASKED QUESTIONS
ABOUT VIDEOCONFERENCING FOR ARBITRATORS. National Academy of Arbitrators
HOW TO INCORPORATE VIDEOCONFERENCING
INTO YOUR ARBITRATION PRACTICE
FMCS. VIDEO ARBITRATION: A GUIDE FOR LABOR AND MANAGEMENT ADVOCATES
CPR’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings
Draft Procedural Order to Govern Virtual
by R.F. Ziegler
Guidance Note on Remote Dispute Resolution Proceedings. Chartered Institute of Arbitration
Seoul Protocol on Video Conferencing in International Arbitration1