The ubiquity of COVID-19 has unlatched the need to rely on “remote hearing” for effective resolution of disputes. It has widely been agreed upon that even though remote-hearing has emerged as an alternative to in-person hearing, the benefits that it bestows will make it a preferable mode even after the pandemic has attenuated.
One of the key considerations that needs to be addressed before opting for a remote hearing is the availability of proper technological and logistical set-up that accommodates the needs of the parties. It is imperative to use a technology-platform that eases the hiccups that might arise due to the remote nature of the hearing. One of the few impediments highlighted against a remote hearing as opposed to an in-person hearing is the difficulty in communicating amongst team members. This aspect of missing team dynamics can effectively be accommodated in a remote setting by using the feature of a ‘break-out room’.
This article will focus on the utilization of a break-out room to improve team dynamics and communication during a virtual hearing.
What is a break-out room?
A break-out room is defined as a separate sub-virtual hearing room. This room essentially allows participants and sometimes non-participants from the Main Virtual Hearing Room to be a part of a smaller group. Collaboration, discussions, holding of caucuses (especially in mediations) and exchanging documents privately are some of the key benefits that a break-out room bestows. In fact, The Vienna Protocol: A Practical Checklist for Remote Hearings, CIArb’s Guidance Note on Remote Dispute Resolution Proceedings, and several other protocols/guidance notes on remote hearings have highlighted the benefits that the usage of break-out rooms bestow.
How are break-out rooms used?
During the course of an in-person hearing, team members pass notes to the arguing counsel, tap on the shoulders to discuss a point that might have been missed or even take a few minutes to discuss the next steps. This process naturally brings collaboration and confidence.
However, the use of a break-out room can provide a solution to this missing team dynamic in a remote framework. Having a break-out room helps team members to communicate privately amongst themselves without interrupting the flow of the argument/proceeding. It provides the ability to a team to instruct the arguing counsel during the hearing just like it is done in an in-person hearing. It is also easier for the counsels to confer with the clients and keep the discussions confidential. On the other end of the spectrum, it provides a space for the Tribunal members to discuss and deliberate upon without being heard by the parties. Therefore, a break-out room essentially acts as a tool to improve team dynamics in an online setting by acting as a medium through which team members communicate with each other in a secure and private manner.
What features should an ideal break-out room have?
a. Functionalities: The break-out rooms should ideally have all the functionalities of the Main Virtual Hearing room. The parties should be able to video-conference, send voice notes/texts and exchange documents privately. Furthermore, the break-out rooms should be designed in such a way that parties can seamlessly move from the hearing rooms to the break-out rooms and back, whether before, during or after a hearing, without having to leave the Main Virtual Hearing room to meet or confer within each team. This inherently removes the hassle of communicating through multiple channels during the course of the proceeding. For instance, privately conferring with the team using WhatsApp or any other external channel makes communication uneasy and inefficient. Firstly, one will have to figure out which message amongst an array of messages need your attention. Secondly, using multiple platforms may derail one from efficient to-the-point communication that is needed during the course of a proceeding. That being the case, it is imperative to choose a technology platform that also offers the feature of having multiple break-out rooms.
b. Members in a break-out room: Many a times, a party would like to have the flexibility of including participants in the break-out room that are not a part of the Main Virtual Hearing room. The break-out rooms should allow this by accommodating such participants. Apart from aiding the team’s productive use of the facility, this prevents overcrowding of the Main Virtual Hearing room, thereby, reducing the scope of any technological hindrance or bandwidth issues.
c. Confidentiality: The CIArb’s Guidance Note pointed out that no one other than the participants in a break-out room should have the ability to hear or view muted discussions as body language of participants, as well as their reaction might negate the whole idea of the confidential meetings. The communication between the participants in a break-out room are private and secure and should not be recorded. Breakout rooms allow the teams to free up a bit from the tension of the main hearing room and discuss more openly, may be crack some jokes and regroup for the next hearing session. However, it cannot be emphasized enough on how important it is to test out a technology platform before the main hearing day. During the movement from the Main Virtual Hearing room to the break-out rooms, parties have to make sure that they have muted themselves and/or turned their camera off in the Main Virtual Hearing room to prevent any kind of unpremeditated ex-parte communication with the Tribunal/other party. To make the hearings glitch free and have the focus mainly on the matter, parties are recommended to avail the facilities of a technical support for the hearings wherever available.
d. Access-controlled: Additionally, the break-out rooms should be access-controlled, which is to say, that, only the individuals who have been given access to the room should be able to add in or remove participants. This adds another layer of privacy to the break-out rooms.
Are breakout rooms different for arbitration and mediation processes?
Technically both arbitration and mediation breakout rooms offer similar set of features. However, for effectiveness of the process, mediation can have additional breakout rooms for each parties where they also include the mediator. This provides a great deal of flexibility among the participants to have private discussions within themselves as well as with the mediator(s).
Our experience
Several arbitrations and mediations conducted on the CORD platform have shown immense potential in how a break-out room can improve team dynamics in an online setting. This facility, essentially, aids collaboration and efficient discussion of issues that the parties want to keep confidential and private. If used efficiently, a break-out room can replicate the in-person team dynamics that seems missing from an online hearing. Being able to send messages, voice notes, documents and even have a parallel video conference can definitely help parties concur privately, aiding smooth sailing during the proceeding.
About the author: Ritika Bharti is a lawyer, doodler, an avid reader and a keen observer. She focuses on the behavioral aspects of arbitration and mediation and she helps CORD in building a human centric platform. She can be reached at ritika.bharti@resolveoncord.com