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Root, Hog or Die: Arbitration Adaption in a Pandemic

A CCA BLOG

By Herbert H. (Hal) Gray III,* CCA Fellow & Past President

In our last Blog entry, the Author wrote of the necessity of arbitrators, lawyers, arbitral institutions — indeed, the entirety of the arbitration profession — to adapt to the new day that has been brought about by COVID-19 and its impact on every facet of everyday life.  His message was straightforward — as arbitrators and as consumers of arbitration services — we must adapt to the new reality of online arbitration proceedings or perish.   In other words, “Root, hog or die”.[1]

Here is the good news:  CCA Fellows have adapted.   They have risen to the challenges of refocusing the means by which arbitration services are provided in today’s new reality.

As predicted in our previous blog posting, over the last year online arbitration proceedings have overcome initial opposition from users and neutrals alike, and have now become the accepted norm.

A variety of factors are responsible for this.  A large amount of credit goes to the major arbitral providers – AAA/ICDR, JAMS and CPR who have analyzed the best means and methods by which arbitration hearings may be provided online.  Model Preliminary and Scheduling Orders promulgated by these providers have been responsive to many of the questions and concerns that arose early on, even among arbitrators, and have  educated both counsel and their clients regarding  the best online practices.  The arbitral providers’ case managers have been trained to host hearings on Zoom and other video conferencing interfaces.  Another measure of credit goes to related organizations, such as the CCA, State and Local Bar Associations and other professional groups who have provided their members tutelage in the nuances of effective management of both the technical and non-technical issues that arise from video arbitration presentations.

Because of the effective application of these measures, much of the initial pushback from advocates and users against online arbitration is gone.   Concerns about due process, or the perceived limitations of video hearings upon effective witness examination and evidentiary presentation have greatly diminished or disappeared completely.

The pandemic will end, although certainly not soon enough.  What will arbitration look like then?  Will we go back to herding people into conference rooms for hearings?   Will the pre-pandemic ever-present collections of exhibit binders reappear?  Only time will tell, but I hope that we will take valuable lessons from the COVID-19 generated online experience, and that the following will be incorporated into the arbitration process going forward:   Digitized exhibits;  Cost savings of travel;  Efficiencies of working remotely;  Skilled, third-party management of the technical aspects of video production and management.   These and many other practices and concerns that were once perceived as unnecessary or inadvisable are now being viewed through a new prism and are being found to be advantageous.

At CCA, our Fellows have risen to the challenges brought to the arbitration profession by COVID-19.  We are ready, willing and prepared to meet the challenges and opportunities offered by this new day.

[1] The phrase ‘root hog or die,’ whose exact meaning is unknown but whose general meaning is ‘to become productive or perish,’ first appeared in print in the 1834 publication A Narrative Life of David Crockett.  David Crockett, A Narrative of the Life of David Crockett of the State of Tennessee; Philadelphia, E.L. Cary and A. Hart (1834).

If interested in contributing to the CCA blog, please email info@ccarbitrators.org.

*The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization.

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