Can and Should Arbitrators Compel Parties to Participate in Remote Arbitration Hearings?

By: Theodore K. Cheng, Esq., ADR Office of Theo Cheng

This article discusses the complex issue of whether and how an arbitrator can compel parties to participate in remote arbitration hearings amid the novel coronavirus (COVID-19) pandemic.

ONE IMPACT OF THE PANDEMIC HAS BEEN TO CREATE DELAYS in the scheduling of in-person arbitration evidentiary hearings due to ongoing governmental regulations, travel restrictions, and concerns over personal health and safety. This delay undoubtedly compromises the promise of arbitration as an expeditious and cost-effective dispute resolution process. By agreement, some parties have arranged to proceed remotely using any one of the many available video teleconferencing (VTC) platforms, such as Zoom, WebEx, or Microsoft Teams. Even if the arbitration agreement expressly prohibits holding a remote hearing, the parties could nonetheless agree otherwise and proceed remotely.

But what if there is a dispute between the parties as to whether to proceed remotely? When the parties’ arbitration agreement specifically forbids remote hearings, it is a relatively easy matter for the arbitrator to:

• Refrain from proposing a remote hearing
• Deny applications to proceed remotely
• Sustain objections when one party wishes to proceed remotely while the other does not

But rarely do today’s agreements explicitly address this issue. CLICK HERE TO READ THE FULL ARTICLE IF YOU ARE A PRACTICAL GUIDANCE SUBSCRIBER