Annotated Model Procedural Order for Remote Video Arbitration Proceedings

Introductory Note: This model procedural order and guidelines are intended to be used by parties, counsel and arbitrators as a checklist of issues and suggestions to address matters that are unique to remote video arbitration proceedings and that should be discussed by a tribunal with the parties well in advance of a remote video proceeding.

This model order can of course also be used as the starting point for a procedural order, adapted to the specific circumstances of a case, to be issued by a tribunal to govern such a proceeding.  In view of that format the provisions in this document are necessarily phrased prescriptively, often couched as actions that “shall” be performed; for use as a checklist or guidelines, however, the prescriptive phrasing should be disregarded.  Indeed, a tribunal might request that the parties meet and confer and submit a draft order that addresses these topics and others the parties may identify.  Ideally the parties would present an agreed-upon order for discussion with and approval by a tribunal, and in any event a tribunal should issue an order of this sort only after input from the parties.

This model order is intended to supplement an existing procedural order, or additional procedural terms, that otherwise govern(s) the conduct of the proceeding.  Also, these guidelines are drafted in a manner that contemplates a proceeding that is conducted entirely remotely -- with each participant in a separate location.  As the COVID-19 pandemic eases, it is increasingly likely that proceedings will be conducted in a “hybrid” manner, in which some participants are located together in a physical hearing room while other participants appear by videoconference.  This hybrid approach can particularly be expected to occur in the future in cases in which witnesses, especially witnesses whose testimony is narrow in scope, are located far from the hearing room. These guidelines can be readily adapted for use in hybrid proceedings.

References to certain commercial service providers in this model order are not intended to endorse their service or product or as any representation as to their quality, adequacy, suitability or reliability; they are identified solely for illustrative purposes.

A final introductory point: “Remote video” is a shorthand for proceedings conducted through videoconferencing systems, in real-time, in which all or most participants are located apart from each other.  Remote video proceedings have also come to be described as “virtual” proceedings, but that word often connotes an artificial substitute for something real (e.g. “virtual reality” and “virtual background”). Regardless of the term applied, such proceedings remain “face-to-face,” and “live” with only the hearing “room” appropriately described as “virtual.”  For the avoidance of doubt, we note that this document uses the phrase “in person” as a shorthand for a non-remote proceeding in which all participants are located in a single physical location.

The complete Annotated Model Procedural Order for Remote Video Arbitration Proceedings dated August 26, 2021, is available in the Resources box to the right.