The past year has seen radical changes in the way we socialise, work, and play. The resolution of disputes has been no exception in this regard. Many disputes have been resolved by means of virtual or online hearings. Parties in different locations, even their own homes, resolve their disputes remotely.

Before the arrival of COVID-19, there were 10 million people using the video conferencing platform Zoom worldwide. By April 2020, there were 300 million users. This is great news for Zoom’s shareholders, if nothing else—according to their Q2 report, revenue was up 355% over Q2 2019. It could also be good news for the future of adjudications.

Steering Committee member, Bill Bordill recently took part in a discussion on the use of virtual hearings and adapting to the ‘new normal’ in the UK statutory adjudication system. Panelists agreed a new way of dealing with disputes has opened up. They concurred it is now likely that many more disputes will be resolved this way in the future.

Many dispute resolution forums allow for virtual hearings now. These include Abu Dhabi Global Markets, who notably proclaimed themselves as one of the first tech-enabled dispute resolution centres. In London, a similar standard was set by the International Arbitration Centre. The centre focussed heavily on the security systems in place to ensure secure hearings were a feature from their opening. Other forums such as IDRC allow for virtual hearings and the DIFC were holding remote hearings in 2017, long before COVID.

In UK courts, Paul Darling OBE QC represented clients in a virtual forum, using the video-conferencing platform Zoom in the much-publicized first remote trial. One of the concerns most often cited is that parties will not be able to interact with each other as they would in a physical environment. There are fears that parties will not have a fair hearing or be on a fair footing if not in a neutral physical environment. Rules of ‘natural justice‘ have been questioned.

Another concern is that of influence; the worry that, in an uncontrolled environment, witnesses may be ‘fed’ answers to questions or influenced in other ways. In a non-COVID scenario, this can be resolved by sending a third, independent party to be with the witness. However, this possibility is slightly more difficult to control in the current environment.

Nevertheless, Paul Darling noted, “What the trial has proved beyond reasonable doubt, however, is that none of the intimacy of the physical courtroom is in fact lost with a remote trial. Rather, video sharing can in fact heighten our ability to dissect testimony, whilst opening up proceedings to the public.”

Another concern highlighted has been that of security. Zoom in particular, as one of the most popular platforms, has been a victim of security attacks. There have been high-profile issues with the ability of the platform to prevent hackers or others from accessing meetings.

Commentators have noted that even a modestly tech-savvy operator ought to be able to remove such risks. They need only enable the relevant settings on the video-conferencing platform before a hearing begins.

Procedure

Under most systems of Arbitration law,  there is usually nothing to preclude the use of technology. The Arbitration stays the same, the rules and procedures are the same.

Long before the arrival of COVID, Erik Schafer, one of Germany’s leading arbitrators, noted on the subject of technology in arbitration: “in the vast majority of cases, all participants will collaborate as required”. He notes that this does need a consensual approach– parties need to agree to the process.

Why bother?

The current virus notwithstanding, there are many reasons to consider remote hearings, just as there are many reasons to consider other uses of technology.

• With no need to hire rooms, provide catering, welfare facilities, etc., there should be a reduction in cost.

• There will be no need for travel, and again, the associated time and cost of that.

• The convenience of a remote hearing means it should be possible to arrange the hearing more easily. It should allow those required to attend to plan other activities around the hearing, rather than block full weeks (or even months) of time out of their diaries.

• Finally, there is the benefit to the environment. Many air miles are accrued traveling between arbitrations and projects around the world. Eliminating the extensive need to travel will reduce the carbon footprint of arbitration.

Practicalities

A key requirement for a remote hearing is a stable internet connection. Even the most experienced broadcasters have, at some point in recent months, experienced a lost line or a poor connection. The connection for all users should be strong.

Users of the system should be able to hear and be heard. So, good-quality audio and a microphone separate to the default laptop microphone would be helpful.

A system should be ‘platform agnostic’. Try to avoid systems that favour one manufacturer or another. Microsoft for example, seem to favour their own Windows operating system, allowing only limited functionality on devices not running Windows. Capterra can be a very helpful website for businesses trying to identify which platform to use.

System choice should be determined on functionality and meet the security requirements outlined above. Most systems are now able to provide a secure discussion. Zoom in particular have been keen to close the various loopholes highlighted earlier in this post.

The ability of certain platforms to provide breakout rooms has been noted as a particular advantage. Such rooms enable private discussions during a hearing or as directed by a tribunal. Surprisingly few systems seem to offer such functionality, but there are at least two that we are aware of.

Recording and storage should be a consideration when it comes to security. If a hearing or meeting is recorded, where is the data stored? Is it secure? As an example, according to surveys, Teams comes out well on security, if set up correctly.

Like so many choices in life, it seems the choice of platform and whether to conduct a dispute resolution process virtually or not will be a trade-off. The loss of ability to see parties face-to-face is compensated for in other ways. Different platforms offer different strengths and weaknesses. However, it seems that no matter what the future holds, the world has become far more comfortable with working from home. As more money becomes available for research and development, the technology will improve commensurately to help us to do so.

This blog was written by ICCP President and Fellow, Paul Gibbons

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