The Role of Technology in Arbitration (and other ADR)

Even prior to the Covid-19 pandemic, technology seemed to find a greater and easier role in arbitration than in litigation. The pandemic accelerated use of technology in all forums of dispute resolution. What have we learned from this recent experience and what do arbitrators and practitioners really want?

Research by Delium – a provider of a cloud-based platform for the review, analysis, and presentation of evidence at trial – in conjunction with the Chartered Institute of Arbitrators (Australia) sheds some light on the thoughts of practitioners. Their "whitepaper" can be found here.

The headline finding of the study is that the vast majority of participants expect the use of virtual ADR to continue to increase and, also that this will improve parties' access to dispute resolution services. This is certainly Brodies' experience of the period since restrictions eased. Although the use of virtual hearings across all forms of dispute resolution has increased over the last few years, most practitioners are still concerned about finding suitable solutions for evidence presentation and the management and examination of witnesses. With a variety of different platforms available to manage virtual hearings, it is not surprising that practitioners are wary about their effectiveness. Our experience is that early implementation of an online platform for the management of evidence and presentation is considerably more beneficial than a postponed or last-minute agreement with only weeks or days before trial. Early agreement is key, and the majority of respondents felt that the choice of platform was one for the parties to take jointly, rather than being imposed by either one of them, the Tribunal or an Arbitration Centre.

Interestingly, whilst there are several published guidelines about best practice in the use of technology in arbitration, the majority of practitioners were either unaware of them or had not read them. Over 4 in 5 respondents had not reviewed the Seoul Protocol on Video Conferencing in International Arbitration – which, pre-dates the pandemic and the acceleration of use of technology – though slightly more were aware of the 2020 Cybersecurity Protocol for International Arbitration, developed by ICCA and others. Perhaps as the use of technology continues to increase, practitioners will become more fluent in these protocols.

Being able to properly test the credibility of witnesses is something that is often said against remote examination. We know from our experience that arbitrators are shying away from that, resolute in their own ability to assess a witness on screen. Given the regularity in which the argument about assessing a witness's evidence is deployed it is perhaps surprising that only 56% of respondents to the study believed that the credibility of witnesses is more difficult to assess remotely. Very few respondents had not experienced a problem with witness examination and less than a third were confident that examination would be reliable if the correct protocols were in place.

When it comes to presentation at trial, around a quarter of respondents felt that a screen sharing function was, of itself, inadequate to properly present evidence. Most participants, however, thought that there was not a technological solution that replicates the controls and processes of face-to-face evidence presentation.

The benefits of virtual hearings identified by respondents are not surprising. Most responses recognised the removal of geographic limitations, cost reduction and the requirement not to travel. That said, only around 1 in 4 participants recognised environmental sustainability as a benefit of virtual ADR and less than 1 in 10 felt that virtual ADR was of a superior quality to in-person hearings.

Although the responses which underpin the findings in the study are primarily from practitioners in Australia, from our anecdotal experience in both domestic and international arbitration, we would be surprised if the findings were materially different if based on a different or wider pool. What is clear is that dispute resolution is here to stay but despite the progress made during the pandemic, practitioners and decision makers still harbour certain doubts.