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As the COVID-19 rampage continues, all segments of society and industry are being affected, with the “new normal” requiring social distancing and online communications. Online platforms such as Skype, Microsoft Teams, BlueJeans, Google Hangouts, and Zoom are gaining popularity, with the installation of Zoom’s mobile app increasing explosively.1 The online platforms’ new found popularity brings with it heightened attention to issues regarding cybersecurity, perhaps best represented by “Zoom bombing”2 that has plagued ZOOM.
One of the business causalities of the coronavirus is in-person arbitration hearings that, for the foreseeable future, are eliminated. To meet this latest challenge, the AAA-ICDR® offers seven publications designed to guide counsel, parties and arbitrators through this new world of online arbitration.
- COVID-19 Update [Updated April 20, 2020]. Prior to the outbreak of COVID-19, the AAA-ICDR® had incorporated business continuity planning in its operations with the planning being updated on a continuing basis. As a result of that planning, the AAA-ICDR® is active and operational with its case, IT, and finance operations continuing to function. Not surprisingly, no hearings are to take place in AAA-ICDR® hearing facilities until at least June 1, 2020. Nevertheless, the AAA-ICDR® is positioned to assist with alternative hearing arrangements, including the use of videoconferencing. For in-person hearings that might take place outside of the AAA-ICDR® hearing rooms, the AAA-ICDR® provides guidelines to be considered by the parties, advocates, and arbitrators. As an aside, parties in future arbitrations should consider whether they want include within their procedural orders an explicit approval of remote hearings, or an agreement to allow remote hearings when in-person hearings become unfeasible.
- COVID-19 Update [Simplified Filing and Invoicing]. To ensure receipt of a party’s dispute, the AAA-ICDR® requests that parties file online through the AAA-ICDR® website. To simplify that procedure, the AAA-ICDR® online publication provides links to forms for arbitration demands made pursuant to the commercial, construction, employment, international, labor, consumer, and mediation rules. This update also provides a link to “Pay Online,” a function that enables a party to pay an invoice or statement via electronic check or credit card. In addition, the AAA-ICDR® maintains the AAA WEBFILE® that allows parties to file a new case, view and pay open invoices, and view all pending tasks and filings made in that case.
- AAA-ICDR® Best Practices Guide for Maintaining Cybersecurity and Privacy. As has been widely reported, certain precautions are necessary in order to avoid online security breaches. Privacy is one of the hallmarks of arbitration and can be at risk when using an online platform. In February, AAA-ICDR® issued its Best Practices Guide for Maintaining Cybersecurity and Privacy in furtherance of its goal of protecting the security and privacy of parties and case information. While recognizing that the level of cybersecurity to be implemented during an arbitration ultimately rests with the parties and their counsel, the AAA-ICDR® is requiring all arbitrators on its panels to complete a cybersecurity training course by year-end 2020. Moreover, the Best Practices Guide specifically provides “[if] a party objects to the continued service of an arbitrator due to an alleged inability to comply with the required cybersecurity measures either agreed to by the parties or ordered by the arbitrator(s), the issue may be submitted to the AAA’s Administrative Review Council.” The Best Practices Guide also contains a series of questions for the parties and arbitrator(s) to consider when designing the cyber-protocol for the online arbitration.
- AAA-ICDR® Cybersecurity Checklist. This Cybersecurity Checklist is designed to accompany the Best Practices Guide and has four parts entitled “General Best Practice,” “PC/Laptop/Mobile Devices,” “Email,” and “Password Hygiene.” Although many of the items on the list are familiar to all who work in the virtual world, the Checklist is an excellent reminder of core best online practices.
- AAA-ICDR® Virtual Hearing Guide for Arbitrators and Parties: This Virtual Hearing Guide for Arbitrators and Parties (“General Hearing Guide”) includes the AAA-ICDR’s statement that it “does not endorse anyone platform over another nor does the AAA-ICDR guarantee the suitability or availability of any platform.” The AAA-ICDR further cautions that use of a third party online platform is subject to the platform’s terms and policies. The General Hearing Guide has four sections entitled “Optimizing the Virtual Hearing Experience,” “Virtual Hearing Security Considerations,” “Preparing for the Virtual Hearing,” and “At the Start of Hearing.” Many of the suggestions in the General Hearing Guide focus on the overarching issue of security. Among the suggestions is that the platform utilized should have a unique, automatically generated ID meeting number for each hearing and as an additional layer of security, the hearing should be password-protected with a unique password that should be shared with the participants via a medium other than the virtual hearing invitation email.
- AAA-ICDR® Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM: Unlike the General Hearing Guide, the AAA-ICDR® Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM (“ZOOM Guide”) focuses on using ZOOM as the third-party platform and consist of 13 pages to guide the parties, counsel and the arbitrators through a somewhat complicated process if security is to be maintained. The ZOOM Guide contains links to ZOOM webpages as well as an Appendix entitled “AAA-ICDR Suggested Zoom Default Settings for Virtual Hearings” with sections devoted to a variety of key topics, including configuration, email notification, in-meeting settings, and cloud recording.
- AAA-ICDR® Order and Procedures for a Virtual Hearing via Videoconference. The AAA-ICDR® Order and Procedures for a Virtual Hearing via Videoconference (“Videoconferencing Order”) is a proposed template to be modified by the arbitrator and parties to fit the specific needs of a case and is designed to provide guidance as to the issues the arbitrator and parties should consider. Among the sections in the Videoconferencing Order is suggested language for memorializing the parties’ agreement to videoconferencing or the arbitrator’s ruling over the objection of the parties that videoconferencing will be utilize. Other issues addressed in the Videoconferencing Order include recording, various technical aspects, managing witnesses and exhibits, the hearing schedule and logistics, potential technical failure, and costs.
While AAA-ICDR® developed each of these seven publications for users of its services, many aspects of these publications are equally applicable to arbitrations administered by other arbitral institutions and ad hoc arbitrations. Prudent parties, counsel and arbitrators would be well advised to consult these publications as they face this brave new world of online arbitration.
Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of other legal issues related to COVID-19.
1. As reported by Business Insider, “‘Globally, first-time installs of Zoom's mobile app increased 213% last week compared to the preceding week of March 9, and 728% compared to the week of March 2,’ Sensor Tower's Head of Mobile Insights Randy Nelson told Business Insider.” Ben Gilbert, All your friends are using Zoom, the video-chat app that is suddenly dominating competition from Google and Microsoft, Business Insider, https://www.businessinsider.com/zoom-video-everywhere-google-hangouts-skype-2020-3 (last visited Apr. 16, 2020).
2. Charles Curtis, What is 'Zoom bombing' and how can you prevent it?, USA Today, https://ftw.usatoday.com/2020/03/zoom-bombing-how-to-prevent-it (last visited Apr. 16, 2020).