Prior to the COVID-19 pandemic, virtual arbitration hearings were far less common than they are today. Virtual hearings proved invaluable during the times of social distancing and lockdowns. Now that the pandemic is behind us, and we’ve grown accustomed to holding proceedings virtually, is there still a place for in-person hearings?
Advantages of virtual hearings
Virtual hearings undoubtedly save time and expense for the parties and the arbitrator. Eliminating the need for travel may make it easier to schedule hearings. In addition, hearings need not be cancelled or postponed if a participant has a minor illness or allergies. Finally, an arbitrator who can run an online hearing smoothly is likely to be familiar with technology in general, and possibly more efficient when it comes to drafting an award.
Advantages of in-person hearings
In an in-person hearing, there are no (or at least fewer) technical difficulties. It will be obvious to the arbitrator if an advocate is inappropriately conferring with a witness, or if witnesses are texting or have notes or other restricted materials in front of them. Depending on the type of case, in-person hearings may pose less of a privacy and security risk because it is more difficult to hack a physical hearing room.
Importantly, it is easier for counsel and the arbitrator to evaluate the credibility of a witness in-person. Counsel and the arbitrator will have a better opportunity to interpret witness’ behaviour and general mannerisms. Finally, there is a greater opportunity to develop a rapport in-person, which may lead to settlement.
While virtual proceedings have their advantages, they are not universally appropriate. There are times when an in-person hearing will prove invaluable to the parties; cost savings and convenience should not be determinative. The choice between in-person and virtual arbitration hearings is an important one. My preference is, and always has been, an in-person hearing.
This article was inspired by “In Person Arbitration Hearings – Back to Normal!” by Herb Silber, K.C., FCIArb. Herb’s article is available online at https://www.linkedin.com/posts/herbertsilber_in-person-arbitration-hearings-back-to-activity-7091819334603321345-wlEF