- Brian McLean
Yes, You Have to Wear Pants
Updated: Apr 20
The COVID-19 pandemic has forced many changes on our society. It has killed many, created vast unemployment and necessitated new societal rules to ensure that the spread of the disease is controlled. In our world, the world of labour relations, it has brought many arbitration hearings to a grinding halt because, as we know, arbitration hearings usually take place in a small hearing or hotel room. Such confined spaces are obviously incompatible with the social distancing measures put in place to combat the virus and likely will be for at least the near future. In these respects, the arbitration “business”, as normally practised, is very much like the restaurant business. Fortunately, for our world there are potential technological solutions which can permit hearings to continue and we are all getting used to them.
There is a real problem when arbitrations are postponed. Significant rights may be delayed and/or denied. To give an obvious example, terminated workers will be off work even longer than normal before having their discharge grievance adjudicated. The unique aspect of the arbitration world in Ontario, at least, is that many arbitrators and counsel have hearing days booked a year or more out. A grievor who loses her hearing date due to the virus, after already waiting a year, may have to wait another year to have her case heard. The longer the antivirus measures are in place, the more disruption to schedules will result. Although the maxim “labour relations delayed is labour relations denied” often seems to be given lip service rather than being a governing rule, it is not difficult to see the danger that labour relations will be denied in a massive way.
Patience has its limits. Workplace parties can only put up with this situation for so long. Increasingly, they have been looking for ways to get hearings done. One obvious way to achieve this goal is conducting grievance arbitration hearings through video conferencing applications (Zoom, Team, Skype). This has been happening on a limited scale. However, there is a sense that this may be the new normal for at least a while. It is not difficult to imagine that limits on travel may restrict in person hearings for a considerable period of time or that parties, once comfortable with the technology, may decide to conduct some hearings by video conferencing as a way of saving time or money.
Even prior to covid-19, video feeds and telephone calls were frequently used at arbitration hearings as “the next best thing” to having a live witness when a witness could not reasonably attend to give in person testimony. However, prior to the recent crisis, it was rarely used for the entirety of the hearing, although this is much more common in other types of legal proceedings.
In my experience, it is clear that video conferencing a hearing is not a perfect solution. Problems can easily arise such as technical glitches which interrupt the video feed and the potential difficulty in assessing witnesses through a screen. Parties may have varying abilities to appropriately access a
hearing; internet coverage is not uniform across the province and some may have just a smart phone or even no way to participate at all.
There are other challenges. Video hearings can be far more mentally taxing than in person hearings for everyone involved, including the arbitrator. Part of that is certainly dealing with the technology and the problems parties may experience with it during the hearing. One solution is to hire an individual to essentially run the technology part of the hearing, something that is becoming more common. Part of the problem may be as a result of the artificiality of the process. In the article, “Why Zoom is Terrible” https://www.nytimes.com/2020/04/29/sunday-review/zoom-video-conference.html (there may be a paywall) the author, Kate Murphy, suggests this may be as a result of the way our brain functions and how that functioning does not adapt well to video conferencing.
Should video hearings be used? For some years there has been a movement towards increasing “rough justice” rather than perfect justice as a way to make the hearing process quicker and less costly. Video hearings are consistent with that movement. As Arbitrator Goodfellow found, in person hearings are the “gold-standard”, but parties do not need the gold standard in every case. However, it is equally clear that there are some proceedings where it may be inappropriate to hold a video hearing. There is evolving case law on these issues.
Planning is necessary to increase the chances of having a successful video conference hearing. In particular, the parties should as much as possible agree on the documents and prepare joint document books which can be in front of every person who is a participant. If new documents arise at the hearing, appropriate contact information should be readily available so that an image of the document can be texted, messaged or emailed to participants. In such circumstances, appropriate cautions need to be made about the inappropriate use of such documents. Alternatively, it can all be done electronically. For example, Zoom has a share content button which allows any participant to share documents or other media, although electronic sharing can be disruptive to the flow of the hearing.
It is also obviously crucial to ensure all participants have the appropriate software (Zoom or Skype) downloaded and that their webcams and sound are working properly. Parties are encouraged to do a practice run prior to the hearing to ensure all participants are “good to go” and at least somewhat familiar with the software.
Parties can also take steps to reduce the amount of stress and anxiety (as discussed in the Times’ article). For example, an external camera produces a much better picture than the internal camera on a
laptop or phone. Good lighting allows one another see facial expressions and makes the meeting more “realistic”. Encourage participants to dress like they would for an in person hearing, including wearing pants.
Finally, it is crucial that parties come to the hearing with the right attitude: one that is focused on making the process work. There is nothing that disrupts a zoom hearing more than people trying to talk over each other. This cannot be emphasized enough. However, that is also true in real life. It is just that in a video hearing, the parties cannot see that I have put my pen down and am no longer listening. Perhaps I should turn off my screen?