Katherine Doran: Lessons learned from a year of virtual hearings in adjudication and arbitration
This month marks a year since the UK went into its first national lockdown in response to Covid-19. The legal sector adapted quickly and embraced technology to continue to deliver legal services.
This adaptability has been particularly evident in alternative dispute resolution (ADR) – specifically the use of virtual hearings in adjudication and arbitration. Because these are essentially contractual processes, parties have considerable latitude when it comes to agreeing procedure. This affords greater flexibility than court litigation, enabling parties to adapt to the ‘new normal’ and to make best use of technology to suit their specific needs.
The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 allow “participation in legal proceedings” as an exception to the requirements to stay at home and avoid gatherings. However, international travel, quarantine, and being cooped up in airless rooms with lawyers, tribunals, experts and witnesses have made in-person hearings unappealing for some, and impossible for others.
Virtual hearings provide benefits beyond mitigating the risk to personal health and safety. The ability to participate remotely eliminates travel time, cost and venue charges. This gives parties more control over timing of the hearing – for example, early or late sittings to accommodate different time zones, or rest or reading days to avoid screen fatigue.
For a virtual hearing to run smoothly, there are various logistical issues which need to be agreed in advance, including which platform to use, security issues and online etiquette. The ICC unpacks some of these issues in its Checklist for a Protocol on Virtual Hearings.
In some cases, it will be helpful to engage third party service providers, such as virtual hearing managers, who will operate the platform, and ensure that all participants are logged-in to the right place at the right time. Parties may also retain specialists in electronic presentation of evidence, who can operate the e-bundle to ensure that documents are presented as they are referred to in evidence or submissions.
Virtual hearings can be helpful where a case involves technically complex evidence. Photographs, diagrams and charts can easily be shown to the tribunal. Documents can be highlighted or marked up in real time to emphasise key points. The process lends itself well to creative presentation of evidence. This may demand a slightly different skillset to traditional hearings. HFW’s construction team recently conducted a virtual arbitration hearing in a case worth $75m, involving thousands of pages of documentary evidence, and numerous witnesses and experts based around the world. Earlier in the year we acted for a claimant in a virtual adjudication hearing on a dispute valued in excess of €140m, with evidence heard from seventeen witnesses and ten experts.
To ensure the quality of evidence, and equality of arms between the parties, in advance of a virtual hearing there should be a frank discussion regarding hardware. As a minimum, participants will need a full size monitor, a high quality microphone and webcam to ensure that non-verbal cues are picked up. Arrangements should be made for any witnesses who may have difficulties participating remotely.
It is also important that everyone involved in the hearing is trained in how to access the hearing platform. Counsel, solicitors and the tribunal will also need to know how to navigate the e-bundle. Training and trial runs are essential. Both should be worked into the timetable and parties’ preparations for the hearing.
During the hearing itself, there should be contingency measures in place in case connectivity is lost. Non-active participants should turn off cameras and microphones to preserve bandwidth and limit background noise. The tribunal will have to ensure that online etiquette is observed, for example, that speakers are not interrupted.
Virtual hearings will not be suitable for all disputes. The evidence might be ill-suited to a virtual hearing. The tribunal may prefer to see witnesses in person. In cases involving allegations of fraud or dishonesty it might be necessary to control the environment in which a witness gives evidence.
However, the benefits of virtual hearings are undeniable. Costs can be saved and travel time eliminated. There can be flexibility in the hearing, and creative use of technology to present evidence. In our experience, clients and tribunals have found virtual hearings to be a positive experience, and will continue to use them after the pandemic.
Successful online hearings depend on effective cooperation between the parties at an early stage. Contract drafters should include provision for virtual hearings in dispute resolution procedures. Agreeing a protocol up-front will save time, cost and logistical wrangling should future disputes arise.
Katherine Doran is a senior associate at HFW