Virtual hearings have evolved from being used “only in exceptional cases” to “urgent matters” to “matters where both parties consent” to “all hearings, except if objected” to “everything the system can accommodate”.
The accelerated journey of technological adoption has raised a number of concerns, including: “my arbitrator/senior/client is not tech savvy”, “it is impossible to brief my senior/counsel during virtual hearings”, “the witness may be coached”; “I am concerned about privacy/confidentiality/data security”, “virtual hearings are marred with interruptions” etc.
Some of these concerns have been addressed in part, but for most, they have had to make way for the more pressing need for expeditious resolution (and livelihoods of practitioners). The recent Interim Report of the Parliamentary Committee suggests that this is likely to be more permanent than the pandemic!
This is the first of a three-part article that will focus on concerns specific to arbitration and how arbitrators, parties, and institutions have addressed them. I have been privileged to watch this from multiple quarters – first, wearing my hat as an arbitration practitioner who has been desperately trying to get his matters heard; and second while working with an online dispute resolution institution (Centre for Online Resolution of Disputes - CORD) that has hosted more than a thousand users over hundreds of arbitrations.
This introductory part will focus on tackling apprehensions about technological adoption. The premise of this article is that parties have/are able to access a computer and a stable internet connection. I recognise the challenges inherent to this assumption, and defer to a number of articles which have already covered this issue.
I am not tech-savvy!
The most common concern, at least initially, was the perceived need for all actors involved in an online arbitration to be tech-savvy. In our experience, this has been a particular concern for arbitrators, Senior Advocates and older clients. The fact that almost all actors have previously used apps like Facetime, WhatsApp, Skype etc., had prepared participants to a large extent but adopting this in a formal setting still posed significant concerns.
In this context, applications like Zoom, Webex, Google Meet and Microsoft Teams (in that order of simplicity) have offered an intuitive offering. But the concern arises if, for whatever reason, there is a problem with any of these solutions: a hyperactive anti-virus, improper permissions, incompatible operating systems etc. A number of participants overcome these challenges by having their more tech-savvy juniors/clerks/children assist. But sometimes, this proves insufficient – especially if problems arise during a hearing. Help is not always available on demand!
An effective way to solve this problem is to ensure that the concerned participants test their systems in advance of hearings and address any concerns ahead of time. In India, where ad hoc arbitrations are the norm, this poses a significant challenge particularly if the person needing attention is the arbitrator. Neither of the parties feel comfortable reaching out unilaterally (perhaps rightly so), and the arbitrators also do not prefer reaching out to either of the parties for assistance. This leaves the arbitrator to fend for themselves with any alternate source of assistance they may have.
In such a situation, an independent agency assisting can make a very significant difference. For instance, where a hearing is conducted at CORD, the standard practice is to ensure that arbitrators are contacted individually before a hearing, to test system compatibility. This is then coupled with on-call/in-hearing tech support during the hearing to ensure parties focus on the dispute resolution, rather than on technological concerns.
Communicating with counsel and intra-tribunal communication
The next most significant concern parties raise is the difficulty to effectively communicate with their lawyers during an online hearing. This is particularly the case where all involved from a particular side are not at the same venue. A similar concern exists where Tribunal members may want to confer between themselves during a hearing. Parties find it hard to replicate the ease with which they could whisper instructions, or exchange post-it notes like they did in a physical hearing. Solutions presently prevalent have their advantages and shortcomings:
Due to the inherent limitations of these offerings, a more arbitration-tailored solution can offer greater comfort to parties. Some virtual hearing room providers, including CORD, address these issues by providing parties with private break-out rooms which are pre-configured. They allow parties/arbitrators to communicate within their specific group including through text messaging, document sharing and video-conferencing that can run in parallel to the main hearing, on a single device. Parties must ensure that they mute themselves on the main hearing room to prevent their conversations in break-out rooms being hearing outside. Parties are also advised to take sufficient care to turn their videos off to prevent lip-reading by the other parties!
A trained technology assistant with moderator rights (useful even in applications such as Zoom, Webex and Teams) can provide an added layer of security to achieve this by muting participants who are evidently not speaking in the main hearing room.
Privacy, confidentiality and data security
These features, which are heralded as among the biggest advantages of arbitration, can be compromised, if sufficient precautions are not taken. The many instances of Zoombombing brought these concerns to sharp focus. Most available video-conferencing platforms have evolved in recent times to meet these challenges, if properly used. Some practical suggestions include:
Randomising the Meeting ID for every hearing to prevent accidental logins by people who have previously used your Personal Meeting ID;
Creating a meeting password that is changed for every meeting;
Enabling the lobby/waiting room feature to add a further check to unauthorised access; and
A moderator with host access monitoring participants and removing participants who do not have the requisite authorisation to enter the meeting.
If data security concerns are significant in your arbitration, then it is also worth noting which jurisdiction's data passes through when processed through your chosen video-conferencing engine. It is also advisable to specifically instruct parties to prevent onward sharing of meeting credentials without Tribunal consent. Some platforms add further layers of security to achieve this by hosting their servers out of India, and by providing login enabled access controls that prevent unauthorised access.
Disruptions during hearings
A common grouse with participants who have used virtual hearings is the constant disruptions they encounter. These range from echoes to participants inadvertently unmuting themselves, having their videos on while evidently not following proper hearing decorum, constant disconnections and reconnections etc. An effective way to monitor these is to have a technology trained moderator.
Since the moderator has significant power during the hearing – including to mute participants and remove participants from a hearing, it is strongly advised that such rights are not given to either of the parties or their representatives. Providing such power to one of the parties also adds an obligation on them, which distracts attention from their primary remit of conducting the hearing.
A Tribunal Secretary or a technology assistant from an independent tech platform can effectively perform this role. A technology assistant can also provide tech support if any of the participants encounter an unexpected issue during the hearing. Feedback unanimously suggests that an effective moderator infinitely enhances the utility and effectiveness of a hearing.
Another solution that CORD offers is to live-stream proceedings (if requested) to a select group of participants. This ensures that the main hearing room is not overcrowded (thereby straining bandwidth and unintended disruptions) while still allowing parties the advantage of following proceedings real-time. That parties can communicate their comments and concerns in the break-out rooms, eliminates any perceived disadvantage of not being in the main hearing.
The next part of this article will focus on the concern about conducting cross-examination virtually.
The author is a Partner at Keystone Partners.