Ordering Online Arbitration in the Age of COVID … and Beyond

Abstract

Arbitration has been moving online for some time, especially with the growth of Online Dispute Resolution (“ODR”), which includes using technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”) and other arbitration laws. Indeed, I have written about OArb on prior occasions, due to its unique status. However, OArb was relatively limited until the COVID-19 pandemic sparked its acceleration. It became the norm while in-person gatherings halted and courts closed, or severely limited the cases they could hear. Furthermore, most opine that OArb is here to stay due to its convenience and cost savings. What happens, however, when a party objects to virtual hearings? This Article will explore this important question and offer analysis that balances efficiency and fairness.

An edited, workshopped and finalized version of this paper will be included in a forthcoming book on arbitration in the wake of the pandemic.

Keywords: Arbitration, ODR, online dispute resolution, OArb, online arbitration, international arbitration, Covid, FAA, federal arbitration act, dispute resolution, ADR