Technology and the Human Touch – Arbitrating post-Pandemic
As much as it might seem optimistic to say that pandemic times are behind us, there is certainly a trend to look towards the future in which at least the gravest restrictions of pandemic times are unlikely to occur. This is so in arbitration world as well, in particular regarding the extent to which the legacy of technology use during previous years is likely to live on or even expand. Along those lines, ICC has recently published its Report on Leveraging Technology for Fair, Effective and Efficient International Arbitration Proceedings (https://iccwbo.org/publication/icc-arbitration-and-adr-commission-report-on-leveraging-technology-for-fair-effective-and-efficient-international-arbitration-proceedings/) .
In addition to plethora of relevant information and guidance, the Report also contains a 2021 survey among arbitration professionals and other individuals related to arbitration concerning the experiences and predictions of using technology in arbitration in the pre-, during and post-pandemic context (see for all below data pages 41-45 of the Report). Despite its expected limits in terms of geographic coverage – respondents were mostly from Europe (45%) and North America (17%) – this survey still offers a good glimpse into trends, but also controversies, of using technology in arbitration in the coming years.
One clear trend is that technology is certainly seen as beneficial and its reversal to pre-pandemic times is highly unlikely. There is almost unanimous agreement that technology has improved the efficiency and cost-effectiveness of the process, and 83% agreed that it had been generally underutilised so far. Considerable majority (74%) did not think that technology had created or exacerbated concerns about fairness and/or equal treatment of the parties. Large majorities were in favour of using IT solutions more often in situations such as videoconferences for case management/procedural conferences (83%), some aspects of evidentiary hearings (78%) or even most of all participants in evidentiary hearings (71%). Use of online case management platforms for communication has also received the same large support of 71%.
In terms of actual experiences, 90% of participants agreed that virtual meetings were conducted effectively as opposed to teleconference or other means typically used pre-pandemic and another 88% agreed that it should be the norm post-pandemic to conduct case management and other procedural conferences as virtual meeting.
Is this then a resounding vote of confidence for a virtual arbitration future? The situation is not so clear-cut. Another set of responses indicates that some concerns and/or traditions remain strong or at least noticeable. ‘IT equality’ of parties is one such area. Although majority (64%) did not think that cost or inadequate infrastructure and resources posed barriers to incorporating technology effectively, a very significant number (36%) did think so. Similarly, roughly 1 in 4 respondents did think that technology posed concerns for fairness and equal treatment, and there was an almost equal split on the question whether technology has levelled the playing field between the parties (51% agreeing, 49% disagreeing). Although paperless arbitration would seem to be the ‘new normal’, 63% of respondents still indicated they would be keeping paper bundles for hearings.
More importantly, nearly a third of respondents believed virtual hearings are less effective overall than physical hearings, in particular concerning cross examination of witnesses (49%), integrity of witness testimony (49%) and interaction between counsel team members (46%). Finally, strong preference for human interaction was seen as a strong barrier for fully virtual/hybrid hearings by 49% of respondents, as were concerns about testimony integrity (42%), time zone issues (45%) and poor IT infrastructure/equipment (44%).
Sounding the death-knell for in person arbitrations is most certainly premature, and it is likely the figures above would be even more cautious if the geographic coverage of the survey included more developing countries. There is certainly room to pick and choose from technological enhancements of the arbitration process that occurred during the pandemic. But it is both unrealistic and undesirable to think that cost-efficiencies should trump all other considerations, starting from deeply human ones (interaction) to access to justice/equality ones (availability of IT equipment). As in so many other areas, finding the right balance would seem to be the only right way forward.