Course Level:

Intermediate

Advance Preparation:

Print and review course materials

Method of Presentation:

On-demand Webcast (CLE)

Prerequisite:

General knowledge of commercial litigation

Course Code:

149243

NY Category of CLE Credit:

Areas of Professional Practice

Total Credit:

1.0 CLE

Alexander Selarnick, Attorney
Cooley LLP

Jeffrey S. Wertman, Partner
Berger Singerman LLP

SEGMENT 1:

Alexander Selarnick, Attorney

Cooley LLP

Impact of COVID-19

• 2020 will change the way we practice law, both short term and long term.
• Courts have been particularly slowed down across the country, given temporary or ongoing postponement or suspension of litigation
  • Many litigants have found themselves stuck — unable to move their cases forward.
• Social distancing and other safety measures have also resulted in an increase of remote depositions and virtual hearings
• Despite these restrictions and backlogs, there has been an increase in disputes
  • Ambiguity & money (e.g., insurance litigation, bankruptcy filings)

Alternative Dispute Resolution: Options

• Private dispute resolution organizations have quickly adapted to the “new normal”
  • Already on the rise before COVID-19
  • AAA, JAMS, Judicate West, etc.
  • Existing and new virtual protocols
• ADR mitigates against delays and the risk of further court disruptions.
  • Historically flexible and now virtually-tested.
• Two primary types of ADR:
  • Mediation
    • Should become even more pervasive due to ability to bring people together while maintaining social distance
    • Mediators can meet with parties together in joint session or separately in private meetings—using virtual “rooms”
    • The impact of the lack of face-to-face interaction remains to be seen
  • Arbitration
    • According to the AAA, it took twice as long to get to trial in federal court than it did to complete an arbitration even before COVID-19.
    • Binding or non-binding
      • Benefit of non-binding arbitration with limited discovery to provide general understanding of strengths and weaknesses

Key Considerations

• Parties should consider the current legal, social and economic environment to determine the most advantageous dispute resolution plan, but there are several key considerations.
• The Nature of the Dispute
  • Bet-the-company situation? = Litigation
    • Preferable to avoid having an arbitrator decide the fate of the company on a limited record with no grounds for appeal, making litigation more ideal.
  • Novel or unprecedented issue? = Litigation
    • Litigation is often favorable for the same reasons.
  • Industry-specific? = ADR
    • Provides the opportunity to select a specialized fact finder.
  • Other factors
    • Consider the impact of lack of face-to-face interaction
• Desire for Speed & Finality
  • Provides an opportunity to limit discovery and the duration of proceedings.
  • Accelerated timeline may outweigh concerns about virtual process
  • Arbitration awards are subject to vacatur under limited circumstances
    • More final and less subject to appeal.
  • Other factors
    • Consider possibility of early dispositive motion practice, which is less common in arbitration
• Relevance of Nonparties
  • Nonparty discovery is notoriously challenging to obtain in arbitration
  • Courts are split on scope of pre-hearing nonparty discovery
  • If nonparties hold important information, litigation may afford greater access.
• Cost Factors
  • Arbitration is often considered more cost-effective than litigation.
  • Consider whether parties share arbitrator and forum fees and the scope of the ADR contractual provision
    • Does it specify costs and fees are paid by the losing party?
• Confidentiality
  • Highly flexible and confidential

SEGMENT 2:

Jeffrey S. Wertman, Partner ​

Berger Singerman LLP

Can an Arbitrator Require Arbitration by Videoconference?

• Review the Arbitration Agreement
• Review Applicable Procedural Rules
• Would the Use of Videoconference Prejudice You?

What are the Key Considerations for Virtual Arbitration Hearings?

• Order for a Videoconference Hearing
• Hearing Record and Recording
• Technical Aspects
• Witnesses and Exhibits
• Hearing Schedule and Logistics
• Costs

Tips for Successful Virtual Arbitration Proceedings

• Proactively Draft Your Remote Hearing Protocol
• Order, Setup and Test Equipment
• Practice Makes Perfect
• Have a Backup Connectivity Plan
• Prepare Your Witnesses
• Enhance Your Demonstrative Graphics
• Take Clues From Your Audience

• In-House and Outside Counsel
• Corporate Lawyers
• Litigators
• General Counsel
• Arbitration Practitioners
• Dispute Resolution Lawyers