Best Practices for Online Arbitrations and Mediations

Online arbitrations and mediations require effective neutral preparation and advocacy to be successful.

On March 11, 2021, Kyle-Beth Hilfer spoke on a panel for the Dispute Resolution Committee of the Westchester County Bar Association. The program was entitled “Lessons Learned from Online Mediation/Arbitration in Commercial Cases.” This post contains some of the questions the moderator asked Ms. Hilfer and her answers.

Q. How have you, as a neutral, modified your process for online or virtual versus in person proceedings?

A. First, I’d like to point out that there is nothing virtual about these proceedings. They are very real, credible tools for dispute resolution. The virtual medium is different, but the outcome for parties remains fair and unbiased and meets the parties’ needs.  I prefer to refer to them as video or online  arbitrations and mediations. They function effectively if neutrals take advantage of the platforms’ features.

In online mediations, I am relying more heavily on pre-mediation conferences, and I do these through a video platform rather than on the phone. Connecting with the parties’ counsel ahead of time is crucial to understand the case, establish rapport, and ensure the mediation process online remains efficient.

In online arbitrations, I am conducting most status conferences via zoom. Video status conferences present an opportunity to set tone for proceedings. If the arbitration is before a panel, the video conference creates more of a feeling of an intimacy than disembodied voices.

I have also noticed that when counsel are quarreling, the visual element helps to resolve problems more easily in either arbitration or mediation. So I take full advantage of the ability to be in a virtual room together as much as possible.

Q. Have you changed any procedures for online arbitrations and mediations?

A. In online arbitrations, I regularly discuss with advocates use of witness statements combined with a brief direct examination to allow the witness to explain the highlights of her testimony. If we can cut down the amount of time spent on the video platform, it helps everyone to stay focused during the proceedings. I have observed consistently efficient results from this practice, with no lack of my ability to judge or understand the evidence.

I also discuss with the advocates submitting a written opening statement or using their pre-hearing briefs as opening statements.  In video mediations, I still want a written pre-mediation statement in most cases, but as mentioned earlier, the pre-mediation conferences are crucial to set up the video mediation’s success.

With regard to documents, I still like to receive documents ahead of time as hard copies. During the video proceedings, however, whether for mediation or arbitration, screen share is a useful tool, provided the person doing the sharing is skilled and fast. In particular, where the documents are spreadsheets, I can often see them better on-screen than with the hard copies. I highly recommend two or three monitors to participants, and I make use of multiple monitors to give me more visual real estate. I also make use of Zoom’s whiteboard feature in arbitration status conferences and during mediations to help everyone track what is going on.

In both mediation and arbitration, I issue a video conference protocol. (There are samples online through the American Arbitration Association.) This document allows the advocates to understand how the proceedings will progress procedurally. It also outlines confidentiality procedures.

Q. Do you still use a joint session in virtual mediations?

A. I use the opening joint session in a virtual mediations primarily to establish the procedural protocols and to explain the mediation process to the parties. Because I rely heavily on pre-mediation video meetings with the parties, there is less of a need for an opening statement. Instead, we can move quickly to caucuses. That being said, there are times when I believe joint sessions can still be productive to help facilitate parties’ understandings of each other’s interests.

Q. What steps have you taken to preserve confidentiality in online ADR?

A. When I conduct online arbitrations or mediations through an administrator like the American Arbitration Association, the administrative body serves as the host of the meeting and sets up all the confidentiality protocols.

If, however, I am functioning as a neutral in an un-administered hearing, I take steps to ensure all online proceedings are confidential. I send out the link to the proceeding as close to the start time as possible.  Everyone enters through a waiting room. The record function is turned off. I also disable the share screen function for participants without permission. I remind everyone that they should not record anything and ask for their agreement that they have no devices set to record. I have also recently started asking about smart devices in the home, such as Alexas, Echo Dots, etc., and ask for them to be unplugged.

In addition, I make use of breakout rooms so that people do not end up relaying confidential information to the wrong parties. To ensure everybody ends up in the correct room, I ask participants to rename themselves online to indicate their party affiliation.

Q. What recommendations would you make for effective advocacy in online arbitrations and mediations?

A. Advocates need to prepare differently in the online environment. Anger and hostility as an advocate does not sell well online. Cross-talk and interruptions just make the proceedings inefficient. Instead, advocates need to convey their conviction in their clients’ cases in a way that does not derail the process.

I’ve also seen advocates who have not adjusted their examination style for the video platform. If their heads are down in their notes, I and the witnesses cannot see their faces. They, in turn, cannot see if the witness is hesitating or confused. With the time lag on virtual platforms, it is even more essential that they watch the witnesses.

Long compound questions are difficult in any cross-examination. In the virtual setting, I see more witnesses becoming confused and disoriented. In addition, advocates should practice their document share skills so we can keep witnesses on track and proceedings moving along efficiently.

One last note—advocates should be aware that arbitrators and mediators can see every micro-expression on their faces. We often can see the whole room. Even if your audio is off, your advocacy team may be sending inadvertent signals to the arbitrator or mediator that you normally would not during an in-person hearing.

Q. Do you think your ability to assess credibility of witnesses/parties is better or worse online vs. in-person?

A. I have not found the online setting to be a detriment to my ability to assess credibility. While I cannot see their whole bodies, I can see witnesses and parties faces quite closely. I can notice when they relax and when they tense.

In addition, because people are often in familiar settings, rather than an impersonal conference room, they tend to be more comfortable and act more like themselves. Of course, good lighting is helpful and I remind counsel of this for their prep of witnesses.

Counsel should also remember that they are on-screen at all times and more visible, perhaps, than in an in-person hearing. Their reactions to testimony and to opposing counsel also factors into assessing a case.