NYSBA Summer 2020 I Vol. 13 I No. 2 New York Dispute Resolution Lawyer A publication of the Dispute Resolution Section of the New York State Bar Association Viral Changes in ADR During the Pandemic Webcam Main Screen To view the participants and to share or view documents Laptop To log into the videocall platform and LiveNote for transcripts Mic-audio Tablet For electronic bundle Cell To keep open line with team members © 2020 – Patricia Saiz. All rights reserved. nysba.org/dispute CLE Online On-Demand Save on the following programs when purchased as a single bundle! Go to the below website for more information on the programs provided. Advocacy in Presumptive ADR 5.5 MCLE Credits Segment 1: Segment 2: How to Value the Case for How-To: Effective Settlement, Mediation and Representation Of Clients Other ADR Processes During Video Mediation Recorded April 22, 2020 Recorded April 27, 2020 1.0 MCLE Credit 1.5 MCLE Credits Segment 3: Segment 4: Preparing For Your First Or Tactical Decisions That Counsel Next Mediation And Selecting And The Client Must Often Your Mediator Make While Participating In Mediation: Part 1 Recorded April 29, 2020 Recorded June 16, 2020 1.0 MCLE Credit 1.0 MCLE Credit Segment 5: Buy all 5 programs for a discounted price Tactical Decisions That Go to: NYSBA.ORG/ADRBUNDLE Counsel & The Client Must • NYSBA Members: $250.00 Often Make: Part 2 • Non-Members: $750.00 As a Section benefit, Dispute Resolution members will save on the following programs Recorded June 29, 2020 when purchased as a single bundle! 1.0 MCLE Credit • Dispute Resolution Section Members: $100.00 Table of Contents Special Issue: Viral Changes to ADR in the Pandemic Page Message from the Chair 5 (Laura Kaster) Advocacy in Presumptive ADR Message from the Co-Editors in Chief 7 (Edna Sussman, Laura Kaster and Sherman Kahn) 5.5 MCLE Credits Dispute Resolution Section News Interview with Shervica Gonzalez: Winner of the Judith Kaye 2019 Tournament’s Best Advocate Award 8 (Leslie Berkoff) Ethical Compass Moving Your Mojo Online 11 (Elayne E. Greenberg) Remote Proceedings Practical Considerations for Holding a Remote Arbitration Hearing 14 (James Hosking and Marcel Engholm Cardoso) Exculpating the Fear to Virtually Hear: A Proposed Pathway to Virtual Hearing Considerations in International Arbitrations 18 (Mohamed S. Abdel Wahab) Remote Hearings in Arbitration and What Voltaire Has To Do With It 22 (Maxi Scherer) Virtual Arbitration Hearings When a Party Objects: Are There Enforcement Risks? 25 (Grant Hanessian and J. Brian Casey) Considering Video Conference Arbitration Hearings in the U.S.: Ensuring Due Process 30 (Steven Skulnik) Conducting the Evidentiary Hearing Remotely 32 (David C. Singer) Online Mediation in a Time of Coronavirus 34 (Simeon H. Baum) Force Majeure COVID-19: Force Majeure and Common-Law Contract Defenses Under New York Law 44 (Tai-Heng Cheng and Daniel R. Perez) COVID-19 Force Majeure Notices Under English Law: What Comes Next? 47 (Ben Giaretta) COVID-19 and Force Majeure Under the Vienna Convention on Sales and in Civil Law 50 (Giuditta Cordero-Moss) NYSBA New York Dispute Resolution Lawyer | Summer 2020 | Vol. 13 | No. 2 3 Table of Contents Page Arbitration The New York Court of Appeals Overturns the Appellate Division’s Ruling Regarding Functus Officio 53 (Mark J. Bunim) The AAA Mandates Good Cyber-Hygiene for Arbitrators 56 (Sherman Kahn) Mediation Civility Standards for Mediation 61 (Norman Feit) International Predicting the Future: International Arbitration in the Wake of COVID-19 64 (John V. H. Pierce) ADR and the Courts Commercial Litigation and Post-COVID-19 Court Backlog 68 (Hon. Shira A. Scheindlin) COVID-19 and the Permanent Judicial Emergency: Is Arbitration the Answer? 70 (Joseph V. DeMarco) When the Numbers Are Not So High: Justice Nigh—Seeking Justice from an Imperfect Justice System 73 (Bart J. Eagle and Adam J. Halper) As Businesses Reopen, the Lawsuits Begin: The Landscape for the Post-COVID-19 Deluge of Lawsuits,the Intersection of Insurance and Using ADR for Expedited Resolution 76 (John S. Diaconis, Mark J. Bunim, Jeffrey T. Zaino, Peter A. Halprin, and Deborah Masucci) Updates from the Institutions Understanding the AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties 81 (Karen Jalkut, Luis Martinez, Charlie Moxley and Jeffrey Zaino) Book Reviews The Handbook on Third-Party Funding in International Arbitration 87 Edited by Nikolaus Pitkowitz (Reviewed by Dr. Christof Siefarth) Case Note GE Power Energy Conversion France SAS Corp v. Outokumpu Stainless USA LLC, et al. 89 (Sherman Kahn) Section Committee Chairs 90 Section Officers 92 Section Editors 92 4 NYSBA New York Dispute Resolution Lawyer | Summer 2020 | Vol. 13 | No. 2 Message from the Chair Here we are together and alone in the remain mindful that radical societal epicenter of a pandemic. It is a moment changes do not advance the cause of of universal grief and challenge. We are equality and diversity unless we focus full of sorrow and at the same time full on making that happen. of admiration and amazement at the willingness of medical workers, grocery New York State has a diverse store workers, sanitation workers, first re- population but our dispute resolver sponders, and delivery people to literally community does not begin to reflect risk their lives to keep us safer. And we that diversity. In June, the Dispute have shared the experience of trying our Resolution Section proudly sponsored hardest to minimize that risk by isolating the Commercial and Federal Litiga- from our friends, colleagues, and loved tion Section’s 2020 Women’s Initiative ones and following the rules imposed by Task Force Follow-up Study. The report an invisible virulent threat. We have not recognized the serious and substantial just learned but experienced the reality efforts made by dispute resolution pro- that we are all connected. We are connect- viders and organizations to expand the ed with the people we don’t think about opportunities for women and minori- near and very far and with the people we ties in ADR. We all have to do much always think about and love. Now what? more. ADR is behind an already slug- Laura Kaster gish performance in the rest of the Bar. In the last decade and perhaps longer, par- We must use our dispute resolution skills to ticipation in groups, including the organized disrupt the unconscious impediments that bar, has been undermined by the burden of enormous have prevented us from realizing our conscious commit- work demands and effort to balance family life. We have ment to equality and inclusion. We literally have to create all been bowling alone. But now that we have been truly a brainstorm. The section redoubles its commitment to alone and sometimes lonely for our colleagues and in making inclusion and advancement of diverse neutrals a need of professional support, there is a special role for priority. our Section and association, which began in 1876, two years before the ABA (also born in New York), as an asso- Meeting now online is not the same as in-person ciation primarily for solo practitioners. We have all been contact but provides us with a chance to increase partici- solo and have needed each other more than ever. pation around the state. We can have social interaction that we crave and support each other even while at a Let us use this inflection point. We cannot fulfill our distance. We can foster newer neutrals, greater diversity, powerful desire to return to the old normal; so let’s meet and provide assistance to the Presumptive ADR programs the reality we face and create a resilient, more equitable that the New York Courts are focusing on and flatten the and diverse future for us, for our profession, for the rule curve of backlogged cases and the expected new flood of law, and for access to justice. of pandemic related claims. We will continue with our extraordinarily fine programming and bring our skills to I am proud to be a member and now Chair of a the special needs that face us. group of dispute resolvers dedicated to professionalism and willing to perceive and address evolving needs and This Section has a history of great leadership. All of demands. Arbitrators and mediators and administrative our former Chairs have remained active and generous organizations have accepted the challenge of transform- contributors. Theo Cheng has been a stellar leader this ing practices to provide online and video conferenced past year. Everyone found him incredibly productive, solutions with a speed that is astounding and outstrips organized, focused, and a joy to work with. I have been the profession as a whole. We, as a Section, with amazing privileged to work with him not just in New York but help from the NYSBA, have been very active in assist- also in New Jersey where he simultaneously led the first ing in this transformation and remaining attentive to the all ADR Inn of Court and was just awarded the NJSBA’s needs of the court system and the public. We will con- Boskey Award for ADR Practitioner of the Year. I extend tinue and increase these transformative efforts. We must my personal congratulations and gratitude for all of his NYSBA New York Dispute Resolution Lawyer | Summer 2020 | Vol. 13 | No. 2 5 energy, friendship, help to individuals and the profession, through negotiation, mediation, and arbitration and I extend our collective recognition of true dedication training for the lawyer’s toolbox and also for service and professionalism. as neutrals state-wide This coming year, in continuing our Section’s many •Encourage