What happens if a party refuses to use videoconferencing? On April 1, 2020, the National Academy of Arbitrators (NAA) issued Advisory Opinion No. 26 regarding whether an arbitrator may order a video hearing over another’s party objection. The NAA found that the need to “provide a fair and adequate hearing” and to “provide effective service to the parties” would allow an arbitrator to issue such an order without mutual consent in certain extraordinary circumstances—for example, during a pandemic an in-person “hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters.”
Hmmm….The NAA advisory opinion stresses that before issuing such an order, an arbitrator should be confident that he or she, as well as the parties and counsel, is familiar with the video platform to be used but still says that if one party does not agree to a virtual hearing, the arbitrator or panel may order that the hearing be conducted via videoconference provided it will give the parties “a fair and reasonable opportunity to present their case and will allow the hearing to move forward on the dates previously scheduled.”
There is a dilemma! Would you do it? I see this causing litigation.
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