Mechanics of Construction Law Update
Pros and Cons of Zoom Arbitration
In February, my colleague Brad Barback and I participated in a four-day virtual arbitration on behalf of a construction client. Under “normal” circumstances, all the parties would have gathered here in the conference room of our Baton Rouge office. However, as we’re all aware, we’re not operating in what was previously considered “normal” circumstances. Given the restrictions on travel and gatherings imposed as a result of the Coronavirus, three arbiters in three different cities (New Orleans, Nashville, and Memphis) heard testimony from witnesses in Atlanta, California, and the room next door to where Brad and I were sitting, while opposing counsel joined from their offices right upstairs.
I’ve now participated in a number of arbitrations via Zoom, and while I’m not convinced these proceedings are “the way of the future” (nothing can replace speaking face to face), there are certain advantages and disadvantages to appearing virtually. Below are some considerations based on our recent experience.
Presenting exhibits virtually.
This was, for me, the biggest challenge in preparation and coordination. Exhibit books, naturally, had to be shipped in advance, and PDFs were also provided prior to the hearing. But the presentation itself required much more coordination and practice than it would in a typical setting. I couldn’t flip to the page in my book and instruct everyone else to do the same, and switch between exhibits as usual. In efforts to maximize the arbiters’ time, I had to practice flipping to the correct page quickly, while Brad (who manned the Zoom window) scrolled to display the appropriate page of the PDF on screen. As a result, we were more constrained with what we chose to present.
Change in client communication.
In the arbitration room, my client and I are in constant communication, passing notes back and forth. In a virtual setting, it’s much more difficult to communicate in real-time. To ensure seamless contact with the client, we dedicated one computer screen to allow client communication. When he wanted to communicate, he would text and email both Brad and me with Brad assuming the role of client liaison while I presented. During breaks, we had a separate Zoom “breakout room” for our group – client and counsel – to discuss strategy separate from the arbitration room. This solution worked, but it was not the same as having the client in the room.
The burden of coordination.
From witness preparation to technical demands and delivering materials in advance, the shift to a digital environment fundamentally required much more advanced coordination – on behalf of all parties, but especially on the part of counsel. Attorneys and clients pursuing this route need to be aware of the time and effort required to advocate effectively in this format.
Whether it’s spotty internet, hardware problems, or user error, there always seems to be a glitch at some point during the proceedings. Make sure you have IT staff available to help and be patient.
Participants can join from anywhere.
Previously, having witnesses appear via video conference generated a lot of pushback in legal circles. While key participants will want to participate in person whenever possible, I believe that this shift to a digital environment may open the door to reducing unnecessary travel on the part of witnesses in the future – which I think will be a welcome change.
Keeping everyone on the same page – literally.
While it requires ample coordination and preparation, screen-sharing for exhibits may prove advantageous, even in live proceedings, as a means to keep everyone keyed in on the operative language at hand.
Controlling for interpersonal variables.
There may be myriad reasons why having a certain participant contained to a “Zoom box” could be advantageous: relationships, personality, temperament, and emotions may factor in differently on screen than they do in person. Depending on the particulars, this may or may not play to your advantage, but it’s an opportunity to control the environment that you don’t have in face-to-face proceedings.
There was no travel time involved. An in-person hearing would have resulted in travel time, hotel accommodations, and meals for the three arbitrators and witnesses. The virtual environment presented substantial savings.
All told, it’s not ideal to conduct hearings remotely, but it works. Every Zoom arbitration I’ve participated in has presented technical difficulties of some degree. But I do think opening the door to virtual participation will be helpful overall, even when we’re not conducting business primarily on Zoom.
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