The pandemic forced the world to re-evaluate how it works—and FINRA’s Arbitration & Mediation Forum was no exception. To keep processes moving, FINRA Dispute Resolution Services allowed hearings to proceed virtually. A year later, we are looking at lessons learned, tips for practicing remotely and plans for the future of arbitration and mediation.
The pandemic forced the world to re-evaluate how it works in a number of ways—and FINRA’s Arbitration & Mediation Forum is no exception. To keep processes moving, FINRA Dispute Resolution Services allowed hearings to proceed virtually. Now, a year later, we are looking at lessons learned, tips for practicing in a remote environment and plans for the future of arbitration and mediation.
On this episode, we are joined by Richard Berry, Executive Vice President of FINRA’s Dispute Resolution Services, and two practitioners, Sam Edwards, a partner with the securities litigation and arbitration law firm Shepherd, Smith, Edwards and Kantas, and Beverly Jo Slaughter, senior managing counsel with Wells Fargo’s Wealth Investment Management Litigation group.
Resources mentioned in this episode:
Episode 10: What Is FINRA’s Dispute Resolution Forum
Coronavirus Impact on Arbitration & Mediation Hearings
Neutral Workshop: Tips for Virtual Hearings
Arbitrator Resource Guide for Virtual Hearings
Arbitrator Training Videos for Virtual Hearings
Listen and subscribe to our podcast on Apple Podcasts, Google Play, Spotify or wherever you listen to your podcasts. Below is a transcript of the episode. Transcripts are generated using a combination of speech recognition software and human editors and may contain errors. Please check the corresponding audio before quoting in print.
FULL TRANSCRIPT
00:00 - 00:23
Kaitlyn Kiernan: The pandemic forced the world to re-evaluate how it works in a number of ways—and FINRA’s Arbitration & Mediation Forum was no exception. To keep processes moving, FINRA Dispute Resolution Services allowed hearings to proceed virtually. Now, a year later, we talk to FINRA's head of Dispute Resolution Services and two practioniers to hear lessons learned, tips for practicing in a remote environment and plans for the future of arbitration and mediation.
00:23 – 00:38
Intro Music
00:38 - 01:13
Kaitlyn Kiernan: Welcome to FINRA Unscripted, I'm your host Kaitlyn Kiernan. Today, we have three guests joining us to discuss the past year of remote arbitration. From FINRA, we have Rick Berry, executive vice president of Dispute Resolution Services. Joining him is Sam Edwards, a past PIABA president and a partner with the securities litigation and arbitration law firm Shepherd, Smith, Edwards and Kantas. Also with us is Beverly Jo Slaughter, senior managing counsel with Wells Fargo's Wealth Investment Management Litigation Group. Beverly Jo, Sam and Rick, welcome to the show.
01:14 - 01:15
Beverly Jo Slaughter: Thanks for having me.
01:15 - 01:32
Kaitlyn Kiernan: Rick, you've joined us on a podcast before. Way back in Episode 11, we featured the work of Dispute Resolution Services. You gave a deep dive then, but just to kick things off, can you remind us and our listeners what FINRA's Dispute Resolution Services does?
01:32 - 01:49
Rick Berry: Sure, Kaitlyn. We offer a forum for investors, brokers and firms to resolve disputes in the securities industry. And our goal is to provide a fair, efficient and cost-effective program. We have hearing locations in every state with a total of 69 around the country.
01:49 - 02:02
Kaitlyn Kiernan: And, Beverly Jo, you work at Wells Fargo and represent the firm in litigation before FINRA, state and federal courts. What has the past year been like for you and how did you get started in this field?
02:03 - 03:06
Beverly Jo Slaughter: So, I'll talk about how I got started first, I was working as an associate in a New York City law firm and the then general counsel of a large broker-dealer came in and said he needed help. I'm going to date myself. This was during Tech Wreck. So, this is 2001-2002, I started doing cases. And here I am some 20-odd years later, still handling that as well as other broker-dealer work.
The last year when my company went remote, we came home, and then, of course, when FINRA announced adjournments, there were thoughts about how we were going to manage our docket. And then when Zoom became available to have hearings, of course, we had a steep learning curve because we hadn't been using virtual hearing platforms very much. So, we had to reach out and identify people who could help us and bring ourselves up to speed. And now we're regularly doing hearings using Zoom, and I expect that's what we'll continue to do throughout this year and in the coming years.
03:07 - 03:22
Kaitlyn Kiernan: And Sam, you are a securities litigation lawyer and past PIABA president, as I mentioned. How did you get started in this field? And just from your perspective, what have been some of the major challenges you've experienced over the past year plus?
03:24 - 04:44
Sam Edwards: Kaitlyn, I actually got involved in this when I was even in law school. I worked for a firm here in Houston that as a part of their practice they handled some then-NASD arbitration cases and they had a very large case involving a rogue broker that had stolen literally hundreds of millions of dollars from a group of investors out of Mexico. And I was hired in part to come in and work on that case. And about the time that I was graduating from law school is when that case wrapped up and I told the firm, you know what, I really like that kind of case. That's really interesting to me. Where can I do more of that work? And just so happened, there was somebody here in town, my former partner, Bill Shepard, that was exclusively his practice. And so, I went and met with Bill and joined him. And this is also in the Tech Wreck days, so just a little bit before that. So, it was pretty exciting and interesting time to start the work. We were incredibly busy. I learned a lot over the last 20 plus years and greatly enjoyed it.
I went the opposite of what my mentor in this field told me to do. He said, go someplace and learn things broadly and then tailor what you want to do down the road. And I went the opposite. I started super specialized and I have over the years broadened my practice significantly and interestingly I've largely felt like I like the focus far better. The more of that time I spend in court, both federal and state, the more that I like arbitration.
04:45 - 04:46
Kaitlyn Kiernan: Well, it's always good to find your passion early.
04:48 - 05:19
Sam Edwards: Yeah, last year has been difficult for everybody. It's taken an incredible amount of adjustments on the claimant side, getting clients used to the idea of not getting to meet face to face for many meetings and not being able to do hearings. Of course, face to face, it's taking some adjustment, but I've actually been reasonably impressed with how well clients have dealt with it, especially my big concern would be the older clients and their ability to transition to that. But I've been pretty impressed with how quickly even our older clients have adopted virtual meetings and virtual hearings and things like that.
05:19 - 05:44
Beverly Jo Slaughter: We should do away with the stereotype that older people don't adapt well to technology. I hope that that's been dashed for good because certainly during the pandemic, for most of us, that was the only way to communicate. And I've just been amazed by how well our senior clients are using it to visit with their FAs and do other things. So, I'm hoping that that stereotype is going to die soon.
05:45 - 06:05
Kaitlyn Kiernan: I have seen bad Zoom etiquette from all generations, so no, the stereotype is not fair. Rick, we've been in this pandemic environment for more than a year now. But just looking back, what was Dispute Resolution Services' initial response to COVID-19? How did it impact your team and how do they respond?
06:06 - 06:56
Rick Berry: The main thing that we have made clear is that health and safety of our arbitration participants is our number one priority. And it was clear early on that we needed to postpone in-person hearings due to the pandemic. And about every month we look ahead several months and determine whether we should continue to administratively postpone hearings or resume arbitration hearings.
In the meantime, we pulled out all the stops in terms of going to the Zoom platform, training our staff on Zoom, making them experts and providing all kinds of training materials for our staff and for arbitrators and parties. So, bottom line, we wanted to make sure that there was another alternative and that cases could proceed if the parties stipulated to move forward by Zoom or if the panel ordered it to happen.
06:56 - 07:04
Kaitlyn Kiernan: So currently, parties can only participate in person when FINRA opens its hearing locations.
07:04 - 07:34
Rick Berry: So actually we have made it clear that if all parties and arbitrators agree to proceed in person based on their own assessment of public health conditions, that case can proceed as long as the participants comply with all applicable state and local orders related to the pandemic. And we've had a huge number of cases that started off down that path. Many have settled, some the parties decided not to move forward in person. We did have one case go to award and we have quite a few in the pipeline.
07:35 - 07:51
Kaitlyn Kiernan: So, it sounds like a situation that's very much progressing and in flux as the pandemic evolves over time. Beverly Jo and Sam, when you first learned that this process would be switching over to Zoom, what was your initial reaction?
07:52 - 09:48
Beverly Jo Slaughter: Well, I will tell you, many of my colleagues said, no, we're not doing that, we're not doing that, and then began really the hard work of taking a look at the platform and getting comfortable with it and looking at our docket and realizing that if there was an available way to go forward, that we wanted to use it, that that was what was fair for the claimants as well as for us. And we were fortunate in that some of our colleagues who practice in the international arbitration field have been using virtual platforms. So, there were people out there that had expertise, that had experience that we could reach out to.
And then a lot of it, too, was just being willing to practice and use the technology and to figure out what worked and what didn't work. We set up a Zoom room at our office here in St. Louis so that our lawyers could have a place to go in and do the hearing in a dedicated room.
So, it's taken a while and we look at case by case whether it's best to try and make a motion or to seek agreement to go forward by Zoom. And there are some cases where that happens and there are other cases where I think both sides are in agreement - we're going to try to wait to see when in-person hearings resume. So, some case forms, expungement, are particularly well suited to Zoom because they're less than a day long and it moves the docket along in a way that's beneficial for everybody.
I am in the middle of what is going to be a multi-week Zoom case and we're prepared. But I have to say, you learn something every time you use the platform again. Every time another situation comes up, you say, oh, and you add it to your bag of experience to be aware of in the future.
09:49 - 10:00
Kaitlyn Kiernan: So, it seems like the length of the case and complexity is one of the things you're looking at when you're looking on this case by case basis. Are there any other considerations that you think are worth mentioning?
10:00 - 11:04
Beverly Jo Slaughter: Well, right now my company has travel restrictions, so we are not able, under our company policy to travel. You can request an exception. But as Rick said, we're really focused on the health and safety of our employees and we don't want them to do anything where they feel uncomfortable.
So, in some instances, we've made adjournment agreements that have said we'll adjourn, but we're going to go forward by whatever means is available at the time the next hearing date comes up. And that's been helpful because that means we aren't waiting constantly. And I think it's fair to both parties that they get their time to be heard. But it helps us, too, because sometimes we have very senior executives who are able to participate much easier using the Zoom platform and to be present.
So, there are some pros and cons and you just have to sit down and take a hard think about the case and your witnesses and health and safety and requirements and make the best decision you can.
11:05 - 11:11
Kaitlyn Kiernan: Sam, what was your initial response when you heard about switching to Zoom?
11:11 - 13:29
Sam Edwards: I think on my side of the docket it was what you would really expect, sort of the visceral reaction of being afraid of what you don't know. And so, most of the claimants, lawyers were extremely concerned about a lot of issues related to the technology itself, the safety of it. I don't know if you remember early on, there were some Zoom problems with some people breaking into some classrooms and doing some inappropriate things. And people got worried about the security protocols and things like that. And so, across the board, I think everyone was concerned on both sides of what does this mean?
I don't know about other people I know FINRA has been using Zoom for a while. I probably had heard of Zoom before the pandemic started, but I definitely had not been on it before and now rarely does a day go by that I'm not on a Zoom call or Zoom something. But at the time it was something that was pretty foreign to most of us. And so, it took a while for people to embrace it and get used to it and see what the capabilities were and figure out how to be able to use those.
So, like Beverly Jo, it's situational in terms of whether we think a case should go forward via Zoom or whether we want to hold out for an in-person. There are certain cases that are probably still better suited and situated for being in person, and there are certain clients who are very strongly opposed to the idea of doing a Zoom arbitration because of the somewhat impersonal nature of it. So, it's very situational for us.
I was surprised; my original inclination was it's going to be better for cases where there's not a lot of witnesses and there's not a lot of documents that would make it a little bit easier. Actually, having done at least a half dozen arbitrations via Zoom I'm really on the opposite end of that spectrum now, the more witnesses and the more documents, the more inclined I would be to do it via Zoom because document handling is way easier via Zoom. Especially if you got a lot of documents. And witness handling is a lot easier as well, especially when you're dealing with organizations that have witnesses all over the country that you need.
So, I've changed my point of view on that for sure, having done a lot of these via Zoom. We're embracing it, but cautiously embracing it, knowing that there still are some things that are lost by being over a Zoom as opposed to being able to be there in person with people.
13:31 - 14:25
Beverly Jo Slaughter: I want to agree with Sam about the document volume, I know we were very concerned about that, but I have to tell you, being able to share your screen, being able to highlight things, being able to underline things, you lose a lot of time when you have binders and trying to make sure everybody's on the right page. That was an unexpected boon in using Zoom.
And I agree with Sam's comments that if you have a witness that's two hours, it's so much easier to arrange for that by Zoom than trying to coordinate travel and getting people in and out and on the stand. So, there have been some upsides, but I certainly understand the limitations. I did a Zoom hearing and I really just wanted to pass a note to my outside counsel. Well, that's harder. You can't do that. So, like everything else, it's got its pluses and minuses.
14:26 - 14:48
Kaitlyn Kiernan: It's interesting to hear about some of these surprise cost savings and logistical benefits or challenges. It's just interesting that we wouldn't have been able to uncover these without this pandemic environment. But, Sam, as you mentioned, one of the concerns was the security of Zoom. How do you think FINRA did to responding to these concerns?
14:49 - 15:45
Sam Edwards: I was very comfortable with it. And Rick and I talked about this early on about the security issues and FINRA put out some information about it and how it was on FINRA's own platform. And so, the things that you were hearing about from others where schools and even some courts that had some inappropriate things happen weren't going to be an issue with FINRA running it through their platform.
The other thing that I think is very important is that FINRA has a FINRA representative on every Zoom hearing throughout it, which is a nice, if nothing else, safety blanket. I've done an AAA Zoom arbitration where AAA doesn't provide that. And so, one of the arbitrators had to do it and that arbitrator did fine. And what limited technical issues we had, I thought the panel handled it fine. But there's some real comfort in knowing that if there are some problems, whether technical or otherwise, you can call out to the FINRA person who will jump in and try to help.
15:45 - 16:45
Beverly Jo Slaughter: I have to say the safety of confidential information was really an extraordinarily high priority for Wells Fargo because a lot of the documents we have have confidential financial information. But I have to agree with Sam, FINRA address those.
And also, I think as we all got more comfortable with understanding how the technology worked, the waiting room and other kinds of things, concerns about the safety were resolved to everyone's satisfaction, to the point now where we almost exclusively use Zoom. We're not as open to say, other platforms, because we have confidence in the safety protocols that are in place.
And I 100 percent agree. It's so great to have a FINRA representative there, because this is the kind of thing where you want the arbitrators really focused on the case and not necessarily focused on getting people in and out of meeting rooms and doing other kinds of things.
16:45 - 17:39
Sam Edwards: One of the initial concerns that I heard expressed by a number of people was a fear that the arbitrators wouldn't be as engaged, wouldn't be paying attention. You couldn't really see what they were doing. Are they really watching you on the screen or are they working on something else or doing something else?
And I will tell you, my experience has been that the arbitrators have been incredibly engaged, have paid attention, follow the documents very well. You can tell in the questions that they're asking that they are making a legitimate effort to make sure that they can really follow what's going on and do as much as if they were there in person. And I wouldn't say it was a surprise for me, but it made me feel good, having gone through a good handful of these now that it confirmed that whether it's going to be remote or in-person, the arbitrators tend to take it very seriously, do their job, and they do pay attention.
17:40 - 17:51
Kaitlyn Kiernan: Rick, can you talk a little bit more about the resources? You mentioned a few of them earlier, that FINRA did provide to the arbitrators and how Dispute Resolution Services helped prepare them for this.
17:51 - 19:01
Rick Berry: One of the really important things we did right off the bat is have every panel, or single arbitrator in a single arbitrator case, go through a walk through where we walk them through Zoom. And we said this is what it's going to look like. This is what it is going to feel like. Here's how we do breakout rooms and really just getting them comfortable. We do it the week before the hearing and if they wanted another one, we do another one. And we actually open that up to counsel and parties as well. And so, if you haven't done a Zoom hearing and you're counsel, we will do it for you and your clients. And some people took advantage of that too and regularly ask us to do it, we are happy to provide that service. So that was one thing we did for arbitrators and parties.
In terms of other guidance and materials, we did four training videos on various aspects of Zoom and its designed for arbitrators, but they're great for practitioners as well. And we have a written guide for arbitrators about doing a Zoom hearing. Again, I recommend practitioners read that. So, there's a lot that we put out there to make sure people are comfortable. I think probably the most important thing where those walk throughs because it really got people comfortable with the platform.
19:02 - 20:48
Sam Edwards: I will tell you, I've made that part of my practice and every one of the cases we do a test run with FINRA staff. Usually, say the case is starting on Monday, we'll do it the Friday before with a FINRA staff member that's going to be on our case. And just so the client signs in and we practice things like breakout rooms so they know that when you leave the breakout room, you need to leave the room, not leave the meeting, which is a mistake that often gets made. Otherwise, when people don't know that, they're not used to that and we share some documents with them and show them how that works, to give them an idea of what is going to look like and everything else.
And I think that gives everyone a lot of comfort that when the hearing starts the next week, we're not going to waste the first half of the hearing trying to figure out how to get through all these silly little things. Everybody's going to know how to log on and how to get things started. And I found that makes a big difference, that the hearings start out and get moving very quickly as a result of that.
I will say the one thing that still scares me a little bit as a practitioner is the breakout room. When you're in an in-person hearing, you take a break. And if you want to talk to your client or to your expert or anything like that, physically distance yourself, walk to an area and you know who can hear you and who can't hear you. And there's really no concern. At the breakout room structure on Zoom, where you get pushed into a breakout room, especially if you have a lot of people in yours.
I did a large multi-claimant arbitration recently when we got pushed into a breakout room, there would be fifteen people in there. So, you may not notice that the opposing counsel got pushed in there by accident as well. And that actually did happen to us one time. Lucky for us the opposing counsel immediately realized they were in the wrong room and said "woah woah wait stop talking! I'm in the wrong room. I've got to get out of here" and I'll let them know not to make that mistake again. But that still scares me a little bit.
20:48 - 21:02
Kaitlyn Kiernan: Well, it's good to know that at least the parties involved are acting ethically in that situation. Beverly Jo and Sam, you've both done a number of remote proceedings at this point. What tips do you have for other practitioners?
21:03 - 22:54
Beverly Jo Slaughter: If you're a practitioner and you're listening, my advice is practice, practice and keep practicing over and over again because it's in the best interest of your clients and in your presentation. You always do a lot of prep when you're getting ready to go to a hearing. Being in the virtual atmosphere added another layer of prep.
So, for instance, we have technical prep now. We don't talk about the substantive part of the case, but we try to work with the person on camera angles, where they are, how the lighting works, do you feel comfortable. All kinds of other things before you even start to talk about the case. And I think you have to factor that kind of time in, download the Zoom app and get your colleagues to download it and just use it. I really think this is a thing of, just getting in and practicing and playing with it and seeing how it works and using it.
It's like many things technological. You just have to play with it and you have to figure out your style. You have to figure out how can I be my best self in this medium? And that takes working with your colleagues.
That's the suggestion, because I think if you do that as a practitioner and you start to get comfortable with it, then you can have that conversation with your clients confidently and you can demonstrate your ability to guide them through what might be a new process. Because remember, I'm a litigator, so this is my forum. I think part of my job, however, is to work with my clients and the witnesses so that they have confidence in themselves and in appearing on this medium. So, download the app, have your colleagues download it and just practice and play.
22:56 - 24:05
Sam Edwards: I would highly recommend anyone who hasn't done it yet and is a little bit concerned to pick up the phone and start calling people who have. Get that input from those where you can have a one on one conversation with them and ask about what worked, what didn't work, what you like, what didn't you like. Those kinds of things. And what specific things do I need to actually worry about? And what concerns do I have that probably aren't real concerns that they're only concerns to me, because I haven't really participated in it before?
And that that's my best source of anything like that, is to reach out to others and try to lean on their experience as opposed to the classic hearsay: "I heard from so-and-so of so-and-so with so-and-so that this was horrible because of this." And a lot of people get preconceived notions about things from that, hearing, third or fourth removed, about something. And it's usually misinformation. You really get more comfortable if you can actually have a conversation with someone who's had that experience and talk to them and say, give me the truth, give me the real story. And I find that that's, with anything new that I'm trying, that's always my go to, is find somebody who's got the experience and get them to share that with me.
24:06 - 24:17
Rick Berry: And Kaitlyn, it bears repeating that FINRA is happy to work with counsel and their parties to walk them through the Zoom process.
24:17 - 24:40
Beverly Jo Slaughter: And I think one thing we've all learned is to take perhaps more breaks than you take when you're in person, because staring at a screen, it's tiring. It's hard. And so, I've found in some hearings that you tend to take a break maybe every hour, hour and a half, just so people can get up and stretch and readjust their eyes and other kinds of things.
24:41 - 25:58
Sam Edwards: I will tell you that that tiresome part was a big surprise to me, having done many arbitrations in person. And I'm never tired, whether it's the adrenaline, I don't know what it is about being there in person, but I never feel worn down or tired or anything. I feel very raring to go the whole time that the hearings going on.
And the first couple of these that I did, especially the ones I've done, several that were more than two weeks long, and it really wears on you not just emotionally but physically. That was a big surprise to me. I did not expect that. And so, I agree with Beverly Jo, you do have to take a lot of those breaks.
And what's interesting, as you would think with all those breaks, that that would slow things down and that that would make these hearings last longer. But it's been the exact opposite. Every single one that I've done so far has finished faster than the time that we allotted, without fail. It's because of how efficient dealing with the documents is and how efficient dealing with the witnesses is, because you don't have to get documents through the wrong witness, which you often have to do in these arbitrations, because getting that witness there would just be too difficult and too cumbersome for what you need to do. The fact that you don't have to do that, does make it actually move a lot faster.
In fact, my estimation is it's almost twice as fast. So, a hearing that would take normally four days we can usually finish it in two now.
25:59 - 26:02
Kaitlyn Kiernan: That's surprising, especially with the added breaks.
26:03 - 27:11
Beverly Jo Slaughter: It's amazing, but I think also, too, as we did more cases, we started to streamline them and to look for efficiencies. What were the things you really had to say? Because you want to keep the hearing moving and interesting. And that just goes to the way people are. It's very hard to just sit and listen for eight hours if you think about it. And so, it made us really think about using demonstrative exhibits, doing other kinds of things. So, there's a break to make sure people stay engaged and also recognizing that we learn this way, many of us do through the computer. So when you look at how material is presented, whether it's in television or movies or whatever, you started to realize you needed to keep a movement and you needed to keep the pace and you needed to do other things to make sure that people stayed engaged. And I think in many ways that's resulted in some time savings because you start and think, I don't really need that piece of paper. These are the things I need to get across.
27:11 - 27:18
Kaitlyn Kiernan: So, I think one of the big questions that a lot of people have is do you think Zoom arbitration is fair?
27:19 - 27:19
Beverly Jo Slaughter: I do.
27:20 - 27:20
Sam Edwards: I do.
27:21 - 27:31
Kaitlyn Kiernan: That's good to know. And Rick, do you have any actual stats on outcomes during this remote period that maybe back up the anecdotal feeling that they are fair?
27:31 - 28:14
Rick Berry: One of the things we like to do is put out as much transparency as possible. So, when we saw that there were people wondering how are the Zoom hearings going? How are the parties faring in this? We decided to add Zoom hearings and in-person hearings to our website so you can see exactly what the outcomes are.
So if you go to our stats page on FINRA.org, you can have that information and you'll see that they're very similar in terms of how often the claimant received damages. In addition to that transparency, we added information about how many stipulated Zoom hearings have been held and how many contested motions have been made and what the outcomes of those were. So, if you look at our website, you'll see all that information too.
28:14 - 28:27
Kaitlyn Kiernan: Great, we will link to those in our show notes. So, Rick we've talked a lot about these virtual proceedings, but what is the status of reopening FINRA's hearing locations for in-person proceedings?
28:27 - 28:41
Rick Berry: We recently announced that we would be reopening the vast majority of our hearing locations effective July 5th. And we're cautiously optimistic that we'll be able to open the remaining hearing locations very shortly thereafter.
28:41 - 28:51
Kaitlyn Kiernan: And so even after in-person hearings resume, what do you think the future of arbitration looks like in terms of the use of Zoom?
28:52 - 29:09
Rick Berry: From a FINRA perspective, we put our cards on the table that we think that Zoom is here to stay because we put all of our Zoom information on our regular website, not on the COVID-19 part of our website, but to the regular website. We think it's here to stay in various forms, but I'll turn it over to the practitioners because they'll know better than I do.
29:09 - 29:58
Beverly Jo Slaughter: I think to Rick's point, there are some hearings that are going to be everybody's in person. There are some hearings where maybe the parties are in person, but the majority of the witnesses are by Zoom. I think there are some proceedings where the cost savings are so great that Zoom is actually a preferred medium. When you think about travel costs, when you think about some locations that are difficult to travel to, it's really our hope that all of those that both in-person and Zoom remain available and that, like so many things in arbitration, that that is something that the parties can discuss between themselves and make decisions about. So, I'd like to see it all available.
29:58 - 31:10
Sam Edwards: I'm a firm believer that you really can never go back on almost anything in life. And now that we've gone forward, and especially now that it wasn't an anomaly, we've done it for a year, and we'll be doing it in some form for the foreseeable future. I don't see us ever going back to exactly the way things were before. I do think that there's going to be some sort of a hybrid version in the future that's going to involve witnesses who are testifying via Zoom, some people who are there in person and how we're going to work that out technology wise and how that'll work, I don't know exactly yet.
And I see some real good that comes out of that because like I said, there are witnesses that if everybody has to be there in person, I would be reluctant to call them because of the cost and the time and everything if they're a relatively short witness. But I wouldn't have any problem calling them knowing that you just got to jump on Zoom and it's no big deal.
And so, I envision a hybrid world in the future. And the cost savings really is enormous. So, I envision a world where in the smaller cases and the sub $100,000 cases, it becomes more the norm to do those via Zoom as opposed to doing them in person just because of the incredible cost savings that comes with them.
31:11 - 31:46
Beverly Jo Slaughter: You actually stole my thought, Sam. And I think in a way, having this virtual forum available actually opens the door to litigants for whom this might not have been possible. I think this actually has a way of opening the forum up and also for people for whom travel is difficult or the location isn't easily reached. There's some real pluses here. And I hope that we'll consider, as I said, to talk with our adversaries and everybody and come to decisions about the best way to put this case on. So, I'm looking forward to a very hybrid world.
31:47 - 32:41
Rick Berry: And Kaitlyn, one thing that we're always trying to do at FINRA DRS is continuously improve. And one of the ways we want to do that in this Zoom area is convene practitioners from both sides in a Zoom task force to help us make sure that we improve the process, that we look at ways to use Zoom in new and better ways.
One of the things that we hear from some practitioners, and we'll see what the task force says, is that maybe we should be having some of our pre-hearing conferences by Zoom instead of telephone. So, we're going to convene this task force to get practitioner guidance. We also will be working with our arbitrators to get more feedback from them.
By the way, I did mean to mention that our arbitrators have had very, very positive reactions to doing hearings by Zoom. So, we get those arbitrator experience surveys and one after the other, they are telling us how much they appreciate the Zoom platform and they're hopeful that it'll be used more in the future as well.
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Kaitlyn Kiernan: Well, just to wrap things up, just looking back over the past year and all that's changed, what do you most hope is here to stay?
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Sam Edwards: I've generally been pretty pleased with how we've been able to work with most respondent's counsel and with FINRA and I hope that that is a sign of the future where instead of the gut reaction of one side wants it, I want the opposite because we're on opposite sides. And so often that's just not right. And the truth of the matter is, just because the other side wants it doesn't mean it's not the best thing for everybody. And so, getting people to buy into that notion and frankly, I saw that early on in the Zoom situation. Claimants are usually going to push things because that's our job. That's what we do. And we got a lot of pushback from the firms early on. Almost every single motion that we filed was opposed. And over time that's changed. And a lot of them haven't been opposed. We've worked together and we've worked together leading up to the actual hearing itself. OK, how are we going to do this? What's the best way to do this? And I just think things always go so much smoother whenever we do that. And it meets the purpose of arbitration. Judges are pretty clear. Here's how I want things to be and you're going to do it my way. Whereas arbitration, one of the beauties of it is the parties, if they want to, can really control it. But that only works, of course, when we're working together. And if we have trust on the other side, just because they suggest it doesn't mean they're doing it to get one over on me. But it really might be the best thing for all of us. And when we do that, and I've seen a fair amount of that in the Zoom world, I think the best thing to have is for everybody.
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Beverly Jo Slaughter: I agree with that. I also hope the thing we keep going forward is this really opened our eyes to making exhibits and their demonstration better. I have to tell you, if I never have to go through a trial notebook again, {unintelligible}. Because being able to use the screen, being able to highlight the things you want people to look at, that has just been huge. And so, I know for us back at Wells Fargo, you know, we're thinking about how can we make that use of exhibits better? Because I think the use of Zoom has really shown us that we haven't been as proactive in thinking about the presentation of the evidence in a way that it's easy for everybody to see and to follow.
I wholeheartedly agree about the cooperation. I think initially there was some trepidation on everybody's side. What's the advantage in whatever? But I agree. A lot of times there's an opportunity to work with the other side to put on the best case, to decide about exhibits, not to have multiple numbers and other things going on. So, I'd like to see that continue.
35:25 - 35:51
Rick Berry: Kaitlyn, you've heard Sam and Beverly Jo talk about how Zoom can help speed things up, how it's more cost effective in some ways, and meanwhile, it's still a fair process. So, I think that's what we're all about, having a speedy, fair, cost effective program. If Zoom and some of the changes that Zoom has brought. For example, what Beverly Jo was just talking about, it's better for everybody and it's better for the program.
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Kaitlyn Kiernan: Well, thank you, Beverly, Joe, Sam and Rick, for joining us to talk through the remote arbitration experience. That's it for this episode of FINRA Unscripted. If you don't already, listeners can subscribe to FINRA Unscripted wherever you listen to podcast. if you have an idea for a future episode, you can email us at FINRAUnscripted@FINRA.org. Until next time.
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