Published 26 January 2021
Beginning in March 2020, COVID-19 related restrictions on travel and in-person gatherings halted the operation of the Courts across North America and, for arbitrations, limited the options available to participants. With proceedings delayed indefinitely until in-person hearings could resume, participants could either undertake only limited, non-evidentiary virtual hearings or continue with full evidentiary hearings virtually – the second option being something with which few participants were experienced or comfortable. Frequently expressed concerns with virtual evidentiary hearings included that arbitrators would find it difficult to assess witness credibility by video or counsel would have difficulties cross-examining witnesses particularly if the questioning involved technical issues or a large volume of documents. Some expressed concern that the solemnity of the process of giving evidence could be lost on witnesses if they testified from the comfort of their own homes.
Guidance available for those considering a virtual evidentiary hearing despite these concerns was limited. Initially, several checklists and "listicles" concerning virtual hearings began to circulate on the internet. Webinars on virtual hearings followed. They ranged from listicle panel discussions to a more instructional approach presenting best practices and resources based on often limited anecdotal experience. Some "watch-me-do-it" webinars provided viewers the opportunity to observe a simulated virtual hearing.