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

Before the arrival of COVID-19, there were 10 million people using zoom worldwide. By April 2020, there were 300 million users using the platform. This is great news for Zoom’s shareholders if nothing else (source: unifysquare.com).

HDP’s Head of Contracts and Commercial, Bill Bordill, took part in a discussion on the use of virtual hearings and adapting to the ‘new normal’ in the UK statutory adjudication system. Panellists agreed the pattern has opened up a new way of dealing with disputes. They concurred it is now likely that many more disputes will be resolved this way in 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 in Dubai were holding remote hearings in 2017, long before COVID.

In the courts in the UK, the country’s first ‘zoom trial’ was much publicised earlier in the year. Paul Darling OBE QC represented clients in a virtual forum, using the video-conferencing platform, ‘Zoom’. One of the biggest concerns 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. It 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 accessing meetings:

https://www.theverge.com/2020/4/3/21207134/zoom-recordings-exposed-thousands-identical-naming-search

https://www.tomsguide.com/uk/news/zoom-security-privacy-woes

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

Procedure

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

Erik Schafer, one of Germany’s leading arbitrators noted long before the arrival of COVID, 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?

Notwithstanding the current virus, there are many reasons to consider remote hearings, in the same way there are many reasons to consider other uses of technology.

  1. The cost should reduce, with no need to hire rooms, provide catering, welfare facilities etc.
  2. There will be no need for travel and accommodation costs and the associated costs of travel time.
  3. The convenience of a remote hearing means it should be possible to arrange the hearing at more convenient times. This should allow those required to attend to plan other activities around the hearing, rather than block full weeks and months of time out of their diaries.
  4. Finally, there is the benefit to the environment. Many air-miles are spent in travelling between arbitrations and projects around the world. By eliminating the extensive need to travel, the carbon footprint of arbitration will reduce.

Practicalities

To allow such a hearing to happen, a key requirement 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 be heard and hear. So, good quality audio, and a microphone separate to the default laptop microphone will 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. The website ‘Capterra’ can be very helpful for businesses trying to identify which platform to use.

System choice should be determined on the functionality and meet 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 piece.

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, in surveys, Teams comes out well on security, if set up correctly.

Like so many choices in life, it seems 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.

Hewitt Decipher Partnership’s expert consultants have been both managing disputes and acting as experts in dispute resolution proceedings for many years. We have also quickly adapted to managing our services and managing our client’s expectations remotely, wherever the projects and clients may be located.

This article was written by HDP Director, Paul Gibbons. If you’d like to speak to Paul about any help that you require, please get in touch