While no technology can eliminate the possibility of human error completely, secure, best practice dispute resolution technology goes a long way to minimize the risk of complications arising and potentially impacting the process.
The shift to the virtual environment, brought about by the COVID-19 pandemic, changed many aspects of legal practice—possibly none more so than the conduct of court proceedings and arbitration hearings.
Virtual hearings enabled continuity over the past two years, and the mix of virtual and hybrid (i.e., in-person and virtual) hearings continue to be embraced around the world for their cost and time efficiencies, as well as their environmental benefits.
Much has been written about evidentiary issues posed by the virtual environment, including how witness or expert evidence is evaluated through a screen and the potential implications of uneven access to technology. What has not been widely discussed are the technical issues and inadvertent human errors that can occur during an online hearing, the implications these might have for parties to an arbitration process, and most importantly, the positive steps that can be taken to manage any such risks arising in the virtual setting.
At the outset of the pandemic, many courts, arbitral institutions and law firms issued protocols with practical tips to support the conduct of virtual hearings. Such guidance, paired with the significant practical experience of virtual hearings gained by arbitrators and legal representatives, helped enable the smooth running of virtual hearings worldwide.
Increased familiarity with the virtual environment helps in avoiding (but not off-setting) issues arising due to human error. It is nonetheless worthwhile reminding ourselves of situations that can still arise when conducting hearings using technology, and how such risks can be appropriately managed/mitigated. Broadly speaking, the areas for lawyers to be cognizant of are the potential for human error when using the technology, security of the platform being used, and technical glitches that can occur.
The following are examples of scenarios involving human error that may arise in a virtual setting:
- An arbitrator mistakenly calls into a meeting using a link from a previous conference and overhears a privileged lawyer/client discussion.
- An arbitrator’s assistant accidentally makes the video-conference link public or sets it up in a way that allows parties to record the session without prior approval.
- An arbitrator accidentally records deliberations with co-arbitrators.
- A party is inadvertently placed in the wrong breakout room and overhears a snippet of the other party’s highly sensitive discussion with their lawyer about tactical considerations in the proceedings.
- A lawyer, intending to send a private message to his client during the hearing, accidentally sends the message to everyone.
With the wrong technology, these sorts of incidents have a high likelihood of occurring and can impact outcomes in subtle ways, for example by affecting the credibility of a party’s legal team before an arbitral tribunal and distracting from the merits. They can also lead to allegations that a party has behaved unethically in overhearing privileged conversations—or that privilege was breached (or could have been breached), leading to a review of the process or even the outcome.
What if due process is arguably compromised by technical failings during an online hearing, either because of human error or due to a glitch in the chosen technology? If confidentiality is breached because, for example, a party is accidentally put into the wrong room, resulting in real prejudice against one of the parties, then there is the potential for allegations of breach of due process. Is it possible that technical failings on video-conferencing platforms could give rise to successful challenges to arbitral awards?
We know that the threshold for overturning an arbitral award is very high, and to date, there have been few challenges to arbitral awards in the context of technical issues which explore this issue specifically (Sino Dragon Trading Ltd v. Noble Resources International Pte Ltd  FCA 1131 is one example in the Australian courts). We know that in order for any due process challenge to be successful, it will have to be based on much more than a generalized criticism of the virtual hearing process itself. It is early days in this area, and it will be interesting to see whether technology issues lead to any novel challenges to awards.
Choosing the right technology remains critical to ensuring the confidentiality of the hearing, and the security of all information and documents associated with the proceeding. Most of the platforms used for virtual hearings today are not built for best practice in dispute resolution, and over the last two years, the legal profession has seen examples of the “perfect storm” which can arise from the combination of unsuitable technology, not built for best arbitral practice, together with human error.
However, technology is rapidly evolving and purpose-built dispute resolution platforms for arbitration hearings exist now. The distinguishing feature of this technology is ensuring the security and the privacy of participants.
This purpose-built technology substantially minimizes the risk of security or privacy breaches by putting restrictions and systems in place to prevent such issues. For example:
- In order to access a virtual hearing, each individual is sent a unique link which specifically identifies them and cannot be forwarded to others, providing certainty as to exactly who is in attendance and privy to information on the platform;
- The virtual hearing is set up so the arbitrator, as the neutral party, is in control of the process and is the only individual who can move people in and out of rooms.
- The platform reduces exposure from process mistakes, such as accidental exposure of information or losing unsaved information. Each arbitration is meticulously set up on the platform, with parties and their lawyers clearly identified, thus minimizing the risk of documents being shared with the wrong person or team.
So, while no technology can eliminate the possibility of human error completely, secure, best practice dispute resolution technology goes a long way to minimize the risk of these complications arising and potentially impacting the process. It can be advantageous to lawyers to consider the platform to be used, and the emerging generation of technological tools available, to ensure a robust and secure arbitration process which protects them and their clients.Credits:
Immediation - Laura Keily, founder and CEO & Rebecca Leaver, Head of Innovation, EMEA
New York Law Journal