Virtual hearings can go slower due to hiccups, making advance preparation, scheduling more important
Advocacy requires lawyers to be prepared, well-organized, have good materials, and to be civil and courteous — but, not surprisingly, there are additional factors to consider for virtual hearings and mediations.
A first consideration is to set “your intention for the virtual engagement, whether it’s an arbitration or mediation,” says Robin Dodokin, a lawyer, mediator and arbitrator at Dodokin Law & Conflict Resolution in Toronto, and a panellist on the upcoming Canadian Lawyer webinar “Virtual Advocacy – View from the Bench” on April 29.
“It’s very easy to feel like it’s just a conference call and be too casual,” she says; but “you have to get your head into the hearing, or mediation, … even if you’re working on your kitchen counter.”
Special attention must be paid to interaction with other parties, “because they’re much more intimate” in a virtual environment, she says. If, for example, one is using two monitors and looking away from the camera at documents, “it can appear that you’re not paying attention.” And if your face is too close to the camera, “it’s not like a courtroom. Everything is magnified by the fact that we’re virtually in each other’s faces.”
For virtual arbitrations there are procedural orders, sometimes referred to as “Zoom procedural orders,” addressing matters such as which technological platform will be used, e.g., Zoom or WebEx, how notices will be delivered, whether the proceedings will be recorded, and confidentiality. There’s also usually a technology failure protocol, says Dodokin.
“For virtual mediations I've come up with [a] set of guidelines: about technology failures, technology requirements, communication rules, electronic signing,” she says; “there's a number of procedural considerations depending on the type of virtual proceeding you're involved in.”
Collaboration with the other side is even more important in a virtual hearing, Dodokin says, including how to organize case documents, and who will upload the files. “It’s important to prepare a joint schedule of the order and timing of whatever deliverables are required for your process, and then when you get to the hearing, the witness order and the timing and when the submissions are to be made” have been worked out far in advance with opposing counsel.
Since virtual hearings can go slower due to hiccups such as technology failures, Dodokin says, advance preparation and scheduling can be even more useful than it is for in-person appearances. She also started thinking more in advance about presenting her exhibits, “because if you're filing your documents ahead of time, and in a document management system such as CaseLines, … you want to decide which ones you're going to bring up first, and how you want them ordered and … available. I found that took a little more thinking on my part, and I had to be a little more organized.”
Dodokin always does a technology run-through with her clients to prepare them in advance of a proceeding, and will discuss verbal and non-verbal communication, and looking at the camera.
“Virtual proceedings are more tiring,” she says; “you have to pay attention and put some extra focus on it.”
In mediation, it also takes longer to build rapport between the parties, she says, as “you don’t have the coffee station where you’re meeting at break”: another reason why virtual mediation can take longer.
But virtual proceedings may improve access to justice in civil matters in several ways, she adds:
- Parties do not have to travel to the hearing and perhaps less time away from work, that it a time saving benefit.
- Concerns about physical accessibility of court houses and buildings are not an issue.
- The technology is available to anyone with a smart device.
- Some costs may be reduced as scheduling and case management matters can be dealt with virtually and quickly without a party or lawyer attending court.
- There may be some other cost reductions for virtual proceedings; for example, there are no room rentals costs or travel expense for witnesses.
- It has allowed dispute resolution to move forward effectively and safely during the pandemic.
Virtual proceedings will continue to be used past the pandemic, Dodokin anticipates, and perhaps using a hybrid process of virtual and in-person.
“In my experience, I haven’t found cross-examinations to be more difficult or less reliable, as long as lawyers have agreed to things ahead of time,” she says, such as “chat” functions off, and witnesses not talking to their lawyers during their testimony.
There will likely be more applications for virtual proceedings, owing to their advantages, and especially for international arbitration where there are parties and experts in countries around the world.
“I think that we’ve all learned a lot during the pandemic — a lot of positives we can use in the post-pandemic world, once we get there. I think people should embrace it as much as possible,” Dodokin says.
“We all have to accept that this technological world we’re in is not going away. I look forward to in-person mediations and hearings and meetings in the future, but I also accept that sometimes the virtual will be the only thing that we can do it, or maybe it will be the best thing in the circumstances, even when we can meet again.”