The new normal? Our experience of virtual hearings and the use of technology for dispute resolution
Like all businesses, we have had to learn to adapt as a result of the coronavirus pandemic. For the Disputes team, it has been a case of “the show must go on” with almost all proceedings continuing despite the lockdown. The solution? Technology.
Hearings, tribunals and mediations were migrated online, and are now taking place via online technology platforms as opposed to in courts or hearing rooms. During the ongoing COVID-19 pandemic, the Greenwoods GRM Disputes team has participated in several remote hearings and forms of Alternative Dispute Resolution (ADR), via Zoom and/or Skype for Business. We discuss our experiences below.
Pre COVID-19, courtroom hearings and forms of ADR (including mediations and arbitrations) in-person were commonplace. Hearings were convened in the same room as judges or tribunals. Mediators used ‘shuttle diplomacy’ to alternate between meeting rooms, attempting to broker a deal. Given that COVID-19 could be spread through close contact with virus carriers, the ‘in-person’ nature of the legal system in England & Wales presented a sizable problem. Given the fundamental importance of access to justice, this left the court system with no option but to migrate to virtual hearings to allow the show to go on.
What are the advantages of virtual hearings?
We have participated in several remote hearings and forms of ADR since the lockdown, on a variety of case types, size and forum. In our experience, there is no one ‘type’ of case which suits a virtual hearing or method of ADR and we appreciate lots of the benefits they bring:
- all participants are able to take part in exactly the same way in which they would have done if the session was being held in person – Zoom hearings take place in the main chat session, and parties can also be moved into separate break out rooms for private conversations (i.e. between clients and the legal team) if needed
- the technology enables instructing solicitors to take a significantly more active role during live hearings – we can send instantaneous notes to Counsel via Whatsapp in response to live events which is opportune for us to ensure all key points are covered; and
- they are more cost-efficient – travel and waiting time costs are removed (which is particularly significant for international participants), bundling costs are significantly reduced with the use of e-bundles (as well as the positive environmental impact) and we are able to make optimum use of the breaks in proceedings liaising with counsel and clients (as outlined above).
Practical tips to ensure the smooth running of virtual hearings
In advance of a hearing, we recommend clients:
- Schedule a practice run to iron out any issues beforehand;
- Having an optimum internet connection (which has already become the norm for many);
- If you are not speaking, you will be encouraged to ‘mute’ yourself and turn your camera off to ensure that there is no unnecessary strain on the bandwidth;
- Third-party moderators are generally used to ensure that the proceedings run smoothly, (whether it be a judge’s clerk or an independently instructed go-between); and
- Parties are encouraged to agree protocols between themselves to ensure that there is minimum delay in the event of a technology meltdown.
Our recent Zoom arbitration hearing
Very recently, the Greenwoods GRM Disputes team concluded a multi-million-dollar arbitration for an Asian-based manufacturer. This hearing took place using Zoom.
When originally scheduling the arbitration, the plan was for all parties to convene in London for a multi-day hearing. It became quickly apparent that this would not be feasible given the worldwide travel restrictions in place. Both parties were keen to progress matters: the dispute had been long-running and there was an appetite to conclude the proceedings. Neither party wished to adjourn.
Zoom provided a perfect solution to enable the hearing to continue on as planned, albeit virtually. The technology at our disposal meant that participants spanning ten different geographical locations – and spread across four different time zones – were able to engage in the same way as if the hearing was taking place with everyone sitting in the same room as originally planned.
Cross-examination took place in the exact same fashion as normal: those giving evidence were asked to confirm that they had no one sitting in the same room as them or were communicating with others whilst giving evidence. All parties had access to their own electronic bundle, and there was an ongoing dialogue between the participants and the legal team during the course of the proceedings.
Comment from our Head of Disputes
Head of Disputes, Huw Wallis, says “In our view, the use of technology for online hearings and ADR during the COVID-19 crisis has been a great success, even on complex, multi-party, cross-border disputes. Paperless working is nothing new for the firm and our strong technological capabilities and IT team have enabled us to continue working seamlessly; in fact, the Disputes team is currently busier than ever hence our recent new starters. We look forward to seeing whether the use of technology will continue to be embraced going forward, even with the gradual loosening of lockdown restrictions.”
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If you have questions about commercial disputes please contact Huw on +44 (0)20 3691 2088 or firstname.lastname@example.org