Virtual Hearings – Arbitrators’ Top Tips and Trends

  • September 30, 2020
  • James Jennings, Filion Wakely Thorup Angeletti LLP

As with all industries, the COVID-19 pandemic came as a shock to the legal profession. Often slow to incorporate technological changes into their practices, lawyers across the province were forced to adapt to a work-from home culture and videoconferencing technologies that until recently had been the domain of our more “modern” clients and not the profession itself. As litigators in a traditionally people-centric field, the pandemic came as a particular shock to labour and employment lawyers. We not only witnessed the closure of Ontario’s courts and tribunals, but suddenly the in-person arbitration hearings (that often saw small boardrooms packed to the brim with multiple lawyers, client reps and witnesses) which previously formed the hallmark of our profession suddenly became a public health hazard.

After the initial shock resulted in the postponement of many hearings and mediations, the labour and employment community adapted quickly to the new world of virtual law practice and has continued unabated ever since. Despite some initial growing pains (ZOOM bombing anyone? What do you mean I still have to wear pants?), lawyers, arbitrators and mediators have turned to ZOOM and other videoconferencing software to conduct virtual hearings and mediations.

In this article I discuss the views of Arbitrators Paula Knopf, Elaine Newman, Chris Albertyn and Robert Herman regarding their experiences with virtual hearings to date and several tips and trends they have noticed from participating in these hearings as arbitrators. This article is intended to be the first in a two part series, with a second article regarding virtual mediations to follow in the next couple of months.

Streamlining the Remote Hearing Process

Depending on who you speak to, you will get different opinions regarding whether remote hearings are faster, slower, or take about the same length of time as in-person hearings. Whatever your experience, there are a number of mechanisms of which parties can avail themselves to speed up and streamline the remote hearing process.

Arbitrator Newman says that case management hearings have played an important role in streamlining many of the remote hearings in which she has been involved. “They have the advantage of requiring some forethought that will contain the burden on counsel, and provide counsel with the advantage of negotiating terms and conditions of the hearing,” Newman said. They provide the parties with an opportunity to nail down the particulars of the grievance, clarify the exact scope of what is (and is not) in dispute, as well as discuss issues related to the calling of witnesses.

Arbitrator Newman also noted that, in some cases, parties have agreed to place estimates on the length of time provided to each witness to testify. “There is something about virtual hearings that I have often found leads counsel to approach the testimony of witnesses with an added level of scrutiny. Statements that might previously have been left alone in an in-person hearing now receive an added level of follow up questions. I have also found that counsel are more likely to ask the same question multiple times in different ways. This extends the length of time each witness remains on the stand.” By agreeing to limits on the length of time each witness can testify, it helps to prevent parties from engaging in these behaviours.