CPR’s Arbitration Committee Tackles ADR Video Conferencing 

By Michael Hotz

The International Institute of Conflict Prevention and Resolution’s Arbitration Committee  hosted an online event early this month to tackle questions from neutrals and advocates designed to help them properly use video conferencing to conduct alternative dispute resolution hearings remotely.

The event was a continuation of a series of discussions hosted by the CPR Institute examining remote mediation and arbitration practices and addressing issues neutrals are encountering conducting remote hearings.  For a roundup of earlier CPR events, see this April 2 CPR Speaks blog post. The CPR Institute’s information clearinghouse on the virus and its effects can be found on its website at the link for ADR in the Time of COVID-19.

The April 7 teleconference was moderated by White & Case New York partner Jennifer Glasser, who is vice chair of the CPR Institute’s Arbitration Committee. Three panel members included: Daniel González, a Miami-based partner at Hogan Lovells; Samaa Haridi, a partner in Hogan Lovells’ New York office, and Jorge Mattamouros, a partner in White & Case’s Houston office.

Mattamouros began by discussing his video hearings experiences. The case he explored was a hearing in a large Brazilian M&A dispute. The hearing was mostly conducted in Portuguese, but also had English language witnesses. It began before the COVID-19 pandemic, so the process had to change in response to the health and safety measures implemented internationally.

Transitioning to remote hearings was made easier, Mattamouros explained, as the parties already had established a protocol for electronic conferencing. First, the parties conducted the opening presentation, and fact witnesses’ examination and cross examination, before travel bans in the United States and Europe.

Then the parties returned home and the hearing continued online using Zoom for the examination of the expert witnesses. Mattamouros noted that platforms like Zoom have chat functions that, if not turned off, allow the witnesses to receive messages during examination. Other neutrals, the panel noted, have used WebEx or other remote conferencing platforms.

The key benefit to being able to use telecommunication services to do arbitration was the ability to conduct hearings across the globe. This is especially relevant for smaller matters, as the amount disputed doesn’t necessarily merit traveling internationally.

Panelist Samaa Haridi discussed how technology allowed her to conduct an arbitration as tribunal chair remotely from New York, despite time differences, with the parties and co-arbitrators in Dubai and London. The timing was a key issue, as it required that the parties coordinate and that the arbitrators arrange a schedule that didn’t impose too great of a burden on any one party. In her hearings, Haridi explained, it often required that she start her day earlier than usual.

Glasser observed that remote hearings may require shorter hearing days but more total hearing time, both to accommodate time differences with parties across the globe but also because it is more difficult to keep the arbitrators and parties engaged when interacting virtually.

Haridi agreed that it was harder to keep people focused when they weren’t conducting in-person meetings. This required the neutral to adjust expectations of what could be accomplished each day.

In one semi-remote hearing Haridi participated in as arbitrator, the parties  were together in one location, and two of the arbitrators were in different cities. And while the third arbitrator was located in the same venue as the parties, he sat in a separate room to maintain an appropriate balance considering the virtual participation of the other tribunal members.

To ward off potential challenges to the award on the basis of perceived lack of neutrality or unequal access to information by the arbitrators, Haridi recommended having the neutral participate in a separate room from the parties in cases such as hers where not all of the arbitrators are able to sit together with the parties in one location. This maintains the appearance of impartiality.

Daniel González stated that he has participated in remote hearings for many years, such as examining a witness by video while the neutral and parties are together in another location.  While remote hearings in the age of Covid-19 present the new challenge of all participants joining remotely from different locations, and technology is rapidly evolving to meet this challenge, it is the human factor and interaction that has not changed over time and must be carefully considered as it will present special issues for the arbitrators, the cross examiners and the witnesses on how they can carry out these virtual hearings.  For example, one challenge the program panel members agreed on is the ability to use and assess body language.

For example, during cross examination, it is difficult for the lawyer to gauge the tribunal’s reaction or for the witness to know if they are effectively conveying information to them.

Hogan Lovells’ Haridi mentioned that the lack of body language also made it harder to evaluate the credibility of a witness. This is one critical issue that led Jorge Mattamouros to state that in-person meetings were still preferable.

Another issue the panelists discussed was the sharing of documents. Remote hearing technology allows for the presentation of documents through the video conference platform.  This feature was used in all of the remote hearings conducted by the panelists.

The panel then discussed how to ensure the efficient presentation of evidence in document intensive cases that are being heard remotely.  Mattamouros commented that he combined all of the exhibits into one master PDF so the parties, tribunal, and witness could easily navigate to the relevant document and page number being referenced without losing time to find and toggle between different documents.

González noted that vendors that handle the organization and presentation of the record in conventional settings were available for virtual sessions as well. Using a third party alleviates the burden on counsel to manage the technology and document presentation.  He argued that it was best to use whatever method the tribunal was comfortable with.

The participants then discussed fairness in arbitration.

Samaa Haridi commented that the use of online hearings could create additional challenges in enforcing an arbitration tribunal’s award. A party who dislikes the ruling could challenge the award by claiming there was no due process.  It remains to be seen how courts deal with such challenges.

White & Case’s Jorge Mattamouros noted that the party’s lack of consent didn’t always establish a lack of due process. That would be determined on a case-by-case basis.

The discussion noted that there is broad leeway granted to arbitrators and mediators when establishing a fair process. Acquiring consent is a simple way of reducing the likelihood that a party can challenge the outcome successfully, but it is not the only one.

Moderator Glasser concluded by asking for the panel’s views on the future of remote hearings after the Covid-19 crisis.  The panel agreed that remote hearings are likely here to stay in some form, such as convening initial case management conferences by video rather than meeting in person.

They also agreed, however, that human interaction is a critical part of a hearing and that in-person hearings will not become a vestige of the past.  Ultimately whether to hold a remote hearing will be a fact-specific inquiry depending on the circumstances at hand.

Glasser brought up the problem that, as more arbitration is moved online, newer attorneys may get fewer stand-up opportunities to make oral argument or cross-examine witnesses. In a standard face-to-face processes, the attorney in charge can allow the novice lawyer to take control more often, as they are still in the room and provide correction and assistance instantly. In the online forum, they do not have that ability, making it much less likely that anyone would be willing to risk their case to give the newer attorney some experience.

* * *

After the discussion of the benefits and issues with virtual arbitration procedures, CPR Institute Senior Vice President Olivier P. Andre discussed the need for those using document transfer or other communication platforms to ensure that they comply with relevant privacy laws.

Without proper cybersecurity, the process can leave parties’ documents vulnerable and potentially subject the neutral to lability. He recommended consulting the CPR/FTI Consulting Cybersecurity Training, the draft ICCA-IBA Roadmap to Data Protection, and the International Council for Commercial Arbitration-New York City Bar Association-CPR Institute Cybersecurity Protocol for International Arbitration. These resources are designed to provide guidance on how to manage the risks associated with cybersecurity and privacy regulations.

* * *

CPR Arbitration Committee Chair Hagit Elul, a partner in New York’s Hughes Hubbard & Reed, announced that the committee was planning on creating an industry-specific project by corroborating with other CPR Institute industry committees such as the pharmaceutical, finance, energy, and construction committees.

The committee also discussed the CPR Institute’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings, a new best-practices document for navigating arbitration hearings electronically.  The document was since released by CPR on April 21, and the details can be found on CPR’s website here.

 

Michael Hotz is a CPR Institute 2020 Spring Intern. His account relies on post-session comments from the participants.

CPR Takes to the Web As ADR Continues in the Face of the Coronavirus Crisis

By Anne Muenchinger, Federica Romanelli & Michael Hotz

CPR on Monday hosted an online event, ADR in the Time of COVID-19: How Neutrals & Advocates Can Use Zoom for Mediations & Arbitrations, a 90-minute training dedicated to helping neutrals and advocates use the Zoom Professional online meeting platform, and how to integrate online tools into alternative dispute resolution practices.

Chicago-based attorney Thomas Valenti, an arbitrator and mediator who heads his own firm, and is a member of CPR’s Panels of Distinguished Neutrals, conducted the session.  Held via the platform he was discussing, Valenti showed more than 200 participants the ins and outs of Zoom Professional and how to adapt it for ADR-centric tools such as preliminary hearings, screening arbitration expert witnesses, and private party-mediator caucuses during interparty negotiations.

Monday’s lunchtime session was a follow-up to a March 17 online CPR Institute Mediation Committee where committee members, including Valenti, compared online platforms and electronic mediation techniques.

Details of both sessions are below, as well as information about an American Bar Association online ADR program held last week.

* * *

At the March 30 program, Valenti led a discussion centered around security issues, a key concern for neutrals in using online tools.  Valenti explained the many Zoom features that control access to information, including “end-to-end encryption” of meetings; identification processes; password protection for meetings; waiting rooms that control meeting attendance; the ability to lock meeting rooms once all parties are present, and auditory signals when someone enters or leaves the room.

Valenti discussed essential resources for guidance in the process of moving to an online forum, including  the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, which provides a framework for information security measures for individual arbitration matters. He also noted Zoom’s own white paper and documents on the subject.

Valenti strongly advised using the Protocol’s Schedule A, which contains a “Baseline Security Measures” checklist and provides neutrals with the right questions about their online practice. The spirit of the Protocol, he said, is to offer a framework within which neutrals can make decisions and best adjust online tools to their individual practices and client needs.

Valenti noted the CPR Institute’s participation in the Protocol’s construction by its Working Group. CPR representatives included Senior Vice President Olivier P. André, along with Hagit Elul of Hughes Hubbard & Reed, and Micaela R.H. McMurrough, Covington & Burling, both New York-based partners at their respective firms.

Several Zoom features were explained and demonstrated, including breakout rooms, which can be used for private meetings and caucuses; screen sharing and white boards, which allow for information display or form filling on the spot, and document annotation by all attendees.

A recording of the session will be available soon on the CPR Institute’s new website Resources coronavirus clearinghouse page, ADR in the Time of COVID-19.

Valenti warned that users must recognize the potential shortcomings of online ADR. The assessment of body language will be limited, and there are no guarantees that there is no one sitting off camera or that the meeting is not being recorded.

Meeting participant Dean Burrell, of Morristown, N.J.’s Burrell Dispute Resolution, suggested a tactic he uses to deal with potential issues: He said he asks the parties to scan the room every so often to confirm no one else is present.

Another concern often raised is whether the session is being recorded; Valenti pointed out, however, that this concern is similar to any other mediation or arbitration with the use of smartphones. Hosts should acknowledge that the process is not perfect, but that risks can be minimized.  He said hosts should ask participants if someone else is in the room and not to record the session.

But beyond the  COVID-19 crisis, online ADR practice provides a useful tool for reducing costs and improving efficiency.

For arbitrators, online tools such as Zoom can help them stand out among tech-averse peers, and market themselves as having the ability to continue to push matters forward.

For mediators, online tools should be an addition to an experienced mediator’s set of skills, and can easily be used to set up documents, type in agendas, and set goals during a session. Hosts can also pass control to another party, and use different colors to identify each participant.

Valenti’s demonstration featured a video with Giuseppe Leone, founder of Virtual Mediation Lab, and showed that online mediation is not a new phenomenon. But the COVID-19 crisis is providing the ADR world with an opportunity to move itself forward with technology—not just as a substitute, but as a way to improve its practices.

Valenti recommended that the session host prepare all necessary documents beforehand and have them available on the host computer before beginning the online session, ready for display and sharing. Additionally, mediators should be more conscious about time when conducting an online, as the experience initially will be different from one in a physical space.

Hosts should also be conscious of the level of skill and familiarity that parties and counsel have with these online tools.

Valenti suggested using the initial pre-hearing conference, as set out under CPR Institute Administered Arbitration Rule 9.3, and in the 2019 CPR Rules for Administered Arbitration of International Disputes as an opportunity to test each participant’s level of comfort.

So an easy way to introduce online tools is to switch from a phone call to a video conference for the initial prehearing.

* * *

The genesis of Monday’s CPR members and neutrals-only Zoom training was CPR’s March 17th Mediation Committee meeting.

The Mediation Committee meeting featured two speakers–Kathleen Scanlon, Chief Circuit Mediator for the Second U.S. Circuit Court of Appeals in New York, and James South, Managing Director, Senior Consultant and Mediator for the Center for Effective Dispute Resolution (CEDR) in London—who presented their perspectives on a variety of mediation issues, including a comparative look at mediation practices on either side of the Atlantic, before focusing on mediating during the coronavirus pandemic.

The Committee then heard how CAMP (the Second Circuit’s mediation and settlement program), CEDR, CPR and the New York District office of the Equal Employment Opportunity Commission are dealing with mediations through the COVID-19 pandemic.

Kathleen Scanlon began by discussing the benefits of Sonexis (see sonexis.com) as a conferencing system.  She explained that it delegates pin numbers to each participant and allows the mediator to create private rooms for each party and join them as needed. Parties can then notify the mediator when they want to talk with the mediator.

She said there hasn’t been too much difference, anecdotally, between the success rates of mediating in person and with teleconference. Still, the video/audio approach leads to more accidental interruptions. It also decreases the ability to read body language, which can affect trust. The teleconference process also can be more tiring for the mediator to manage.

CEDR’s James South then stated that he uses Zoom.  Meeting participant Thomas Valenti agreed, also recommending the business version of Zoom to conduct more complicated mediations—which prompted the Monday, March 30 session he led, discussed above.

The Mediation Committee meeting participants, who like the March 30 session also participated by Zoom, agreed that it is critical that the conferencing technology used complies with privacy and confidentiality rules like Europe’s General Data Protection Regulation (best known as the GDPR). It also was recommended that the parties should consult the ICCA-NYC Bar-CPR Cybersecurity protocol.

James South noted that many mediations had been going on normally during the early stages of the coronavirus pandemic, but that he expected that to change over time. He said he has found that parties have been flexible, and been willing to move to video conferencing. He noted that he is unsure if this will survive the crisis, or is only due to the current state of affairs.

South, however, was confident that any reduction in mediation will return to normal levels.

* * *

Committee members then had a lengthy discussion of the issues surrounding the health crisis.  CPR Institute Senior Vice President Helena Tavares Erickson commented that she had provided to members of CPR’s Panels of Distinguished Neutrals a list of services that they could use to mediate effectively during the crisis.

Erickson noted that CPR Dispute Resolution Services offers its neutrals the option of using a secure document exchange, which allows for online text chat in different chat rooms. (For CPR Institute Dispute Resolution filing details, see www.cpradr.org/dispute-resolution-services/file-a-case.)

Meeting participant David Reinman, who is supervisory ADR coordinator of the New York District’s U.S. Equal Employment Opportunity Commission office, reported that his unit has a program that is currently handling all mediation by video or phone. The EEOC also is allowing parties to reschedule if they insist on in-person mediation. Parties who need translators or other special accommodations may invoke applicable proceedings, too.

Tom Valenti asked about screening procedures when conducting in-person mediations. It was noted that many law firms are forcing people to sign waivers stating that they hadn’t been in at-risk places. Given current advisories and shutdowns, however, it’s unclear that such waivers are effective. If parties want to continue doing face-to-face mediation—which has ceased entirely in many shutdown locations for the duration of the emergency–best practice would be to state that they haven’t been in contact with anyone who is infected.

Meeting participants noted, however, such mandatory declarations on disclosing other parties’ infection status could potentially violate HIPAA rules.

Various other online platforms and training options were compared among the participants near the meeting’s conclusion.

* * *

Beyond CPR’s online training event and meeting, and the resources noted, including the new CPR Institute website Resources clearinghouse page, ADR in the Time of COVID-19, others in the legal world and the dispute resolution community have tackled the move online.

For example, the American Bar Association webcasted a panel of experts on continuing with mediations, arbitrations and similar ADR commitments while coping with coronavirus.

The 90-minute March 20 web panel, “ODR in the ERA of COVID-19: Experts Answer Your Questions,” featured panelists including Hamline-Mitchell School of Law Prof. David Larson; online dispute resolution pioneer Colin Rule, who is a Stanford Law School lecturer, and University of Missouri School of Law Prof. Amy Schmitz. It also was hosted on Zoom.

The panelists shared a presentation while providing useful links on a side chat and taking Q&A from the attendees on another window—an electronic version of social distancing that has been repeated, and is rapidly become an ADR standard operating procedure.

The panel provided a list of advice for neutrals wanting to add tech tools to their toolbox.  It focused on accessibility; preparing lists; ensuring a competent approach; accessing live assistance as needed; analyzing online providers (see, e.g., http://odr.info/provider-list/); taking stock of the role for non-verbal communication; assessing whether the disputants will communicate synchronously; confidentiality; considerations for designing an ODR system; ensuring fairness; and ethical considerations.

The ABA panel concluded on ODR resources, providing the following links:

  • Cyberweek 2019; the NCTDR hosts Cyberweek annually at its website.
  • com, a collaborative resource guide.
  • Amy J. Schmitz and Colin Rule, The New Handshake: Where We Are Now (June 27, 2017). International Journal of Online Dispute Resolution 2016 (3) 2; University of Missouri School of Law Legal Studies Research Paper No. 2017-18. Available at SSRN: https://ssrn.com/abstract=2991821

* * *

Muenchinger is a CPR Institute Spring 2020 intern, and an LLM student at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, focused on the March 30 session discussed in this article.  The section on the CPR Mediation Committee meeting was prepared by CPR Institute Spring 2020 intern Michael Hotz. The section on the ABA seminar was prepared by CPR Institute Spring 2020 intern Federica Romanelli. Alternatives’ editor Russ Bleemer assisted with the research and writing.

 

 

Update on CPR’s Employment-Related Mass Claims Protocol

Recently, there have been reports in the news relating to the International Institute for Conflict Prevention and Resolution’s (CPR) Employment-Related Mass Claims Protocol (Protocol).  We thought some background might be useful.

As more and more mass employment arbitration claims are filed around the United States, arbitral institutions have become increasingly aware of the tremendous challenges they face when trying to bring timely – and comprehensive – resolution to these claims.  CPR responded to these challenges by borrowing techniques that had proved successful in the resolution of other mass claims and applied them to the employment space with the goal of facilitating a comprehensive resolution of mass employment claims for all parties involved. The result was the Protocol.  In developing its Protocol, CPR was aware that, in order to be successful, it was imperative that the features of the Protocol be balanced and designed to facilitate global resolution.

As noted by former Southern District of New York district court judge, Shira Scheindlin, a veteran of mass claims matters, in connection with her appointment as the Administrative Arbitrator under the Protocol:

This protocol offers advantages, not only to claimants, whose cases will likely be resolved at the defendant’s cost and far more quickly than they would be in court, where mass claims often take years to resolve, but also to defendants, with the greater odds it offers of reaching a prompt global resolution in a more cost-effective manner than the courts would offer.  And, most unusually, the defendant-employer will release an individual from mandatory arbitration if no global resolution is reached and the individual employee prefers a court proceeding to arbitration.

The terms of the Protocol itself speak to its innovative approach to facilitating resolution in the most efficient way possible.  The initial phase of the Protocol provides for “test” arbitrations (10-20) to first proceed on an accelerated track followed by a mediation process that encourages resolution of all claims.  If that process is unsuccessful in identifying a mediated solution, the Protocol allows claimants to opt-out of the entire arbitration process.  Not only does this opt-out allow for employees to pursue their individual claims in court, but it also allows for the possibility that these claimants might, with court approval, be able to proceed collectively in a class action.

The objective of the initial phase of the Protocol is to resolve all the cases as a whole as quickly as possible.  During this initial phase, the non-test cases are paused with all rights preserved in order to give the parties a chance to explore a global resolution. CPR believes that this procedure will actually encourage faster overall resolution of mass claims – especially when compared to the substantial delay that employees inevitably face while waiting for appointment of an arbitrator for, and the proceedings on, their claim when their claim is one of hundreds or thousands of mass arbitrations filed at the same time. If a mediated solution is reached, employees have the option of accepting that resolution or proceeding with individual arbitrations.  In the case of individual arbitrations, each employee – and the employee alone – nominates the arbitrator from a Master List of arbitrators provided by CPR, and the employer pays all fees – including for the arbitrators, the mediator, and the administrator.

The Protocol gained attention in the press recently after DoorDash adopted the Protocol in agreements with its workers and a dispute arose as to where DoorDash should arbitrate its workers’ claims that had previously been filed before the AAA.  In the context of that dispute in the case of Abernathy v. DoorDash, No.19-CV-07545 (N.D. Cal.), it has been suggested that CPR’s work on the Protocol may have been guided unfairly by counsel for Respondent DoorDash.  CPR disagrees with this characterization.

As made plain by the discovery already undertaken of CPR in the Abernathy case, including a deposition of CPR’s President & CEO, it was CPR, not counsel for the employer, who conceived of, wrote and controlled the Protocol.  This is underscored by the inclusion in the Protocol of the provision allowing claimants to opt out of the arbitration process and proceed in court – a provision disfavored by counsel for DoorDash. An examination of the Protocol itself shows that its provisions favor neither side; rather, the Protocol was intended to – and does – provide for an innovative and balanced solution for resolving mass employment claims for all parties involved.

With respect to interactions between CPR and counsel for DoorDash, the deposition testimony also discusses, as CPR previously explained in a letter to the Court dated December 12, 2019 (publicly available at Docket Entry 137), that counsel for the employer reached out to CPR last year to express concern over options for administration of a mass of claims and the fee structures being imposed and asked whether CPR could offer an alternative fee schedule for administering future arbitrations.  Rather than just focusing on alternative fees, CPR took the opportunity to try and develop an innovative and fair process for resolving these claims for all parties involved.  As a result, CPR developed the Protocol based on its own experiences in other mass claims areas.  CPR then sought and considered input on the Protocol from a variety of sources, including counsel for DoorDash — who was contemplating applying the Protocol in future contracts with its workers. CPR sought input from labor and employment counsel with experience representing both management and employees on an individual and class basis, and attorneys with mass claims and complex commercial litigation and arbitration experience, some of whom are also prominent arbitrators and mediators, including one of the foremost experts in facilitating the resolution of mass claims. CPR also received input from particular members of its Board of Directors, who have served as advisors to ALI’s Restatement of Employment Law and who have chaired the New York Chief Judge’s Advisory Committee on Alternative Methods of Dispute Resolution.

CPR developed the Protocol for the broader marketplace, not for any particular matter or party, and did so in the hopes that it would facilitate resolution and help solve for many of the challenges facing employees and employers dealing with mass individual employment arbitrations. We invite you to review the features of the Protocol for yourself.  CPR believes its Protocol will allow for the efficient, fair and balanced administration of employment-related mass claims for both employees and employers.

About CPR

CPR is an independent nonprofit organization formed in 1977 to, among other things, identify alternatives to litigation and ways to prevent and resolve legal conflicts more effectively and efficiently.

The CPR Institute is a think tank that has long brought leadership to the improvement of conflict management, as exemplified by work such as:

  • The Model Rule for the Lawyer as a 3rd Party Neutral and the Provider Principles developed jointly with Georgetown University
  • The Model Procedures for Mediation and Arbitration of Employment Disputes developed by a Committee of lawyers representing employees and employers as well as academics and neutrals
  • CPR’s Master Guide to Mass Claims Facilities compiled by a Commission co-chaired by Kenneth Feinberg and Deborah Greenspan
  • CPR’s book Cutting Edge Advances in Resolving Workplace Disputes published together with Cornell’s Scheinman Institute

CPR Dispute Resolution is a provider of dispute resolution services and will be administering the Employment Related Mass Claims Protocol to applicable arbitrations, along with its Panel of Distinguished Neutrals, who will be relied upon to mediate and arbitrate these claims.