Technology has been quick to address the need for a remote conduct of arbitration hearings, from the very early stages of the current pandemic.
Efficient, affordable, and generally reliable tools have been developed to ensure that all parties in attendance have audio-visual access to each other, as well as to digitised hearing bundles and live transcripts.
Virtualisation of arbitration hearings may expedite the full digitisation and sharing of data including documents, charts, photographs and the like, making the fumbling of paper pages of bulky lever arch files a thing of the past.
Digitised, word-searchable documents are easier to navigate across, paginate, bookmark, organise and position at the disposal of counsel, witness, and tribunal through screen sharing, which ensures that no time is lost (or indeed gained) by trying to locate a page of an exhibit that the examination relates to.
Arbitration hearings conducted purely for the purpose of submitting legal argument, are a rare occurrence, and thus unlikely to benefit from these technological achievements.
The question therefore arises, when it comes to examining a witness, this being the main driver to have a hearing in the first place, is a virtual hearing as effective as a physical one?
Given the technological achievements and IT tools made available to the legal industry, it would be difficult to argue that virtual hearings are not efficient.
The major functionality that must be applauded is the coverage of geographical distances that would otherwise be expensive or impractical to coordinate.
However, this does not mean that efficient technological achievements and IT tools are necessarily effective, as far as the most important and pivotal purpose of their function in arbitration is concerned, i.e. witness examination.
This is because it is difficult to imagine witness examination being effective without direct eye contact.
There is a very significant impact on a witness that knows and feels is being looked at directly and a very significant feedback on the tribunal and counsel when direct eye contact is received by the witness.
This important impact/feedback aspect cannot be experienced at a virtual setting, because direct, mutual and simultaneous eye contact is technically impossible – at least currently.
For the witness to feel a direct eye contact from counsel, would require counsel to look at a web camera – not at a screen where the witness can be seen.
Not looking at a witness directly (but at a web camera instead) deprives counsel of the opportunity of both having an impact on witnesses (who know that they are not being directly looked at) as well as of receiving any feedback on such impact.
The witness, would have to look at a screen to experience counsel’s direct eye contact and in doing so, would appear as if looking away from counsel.
The same applies to questions from the tribunal as these may be directed to counsel, or to witnesses.
In practice, during a virtual hearing, all parties including the examined witness, would appear to spend most of their time looking at multiple screens and away from the camera that records their words and actions.
Hence, the general feel of a virtual hearing is that no one appears to be actually looking directly at anyone else, at any point in time.
Whilst this may not be so important or even noticed in any other type of virtual meeting, in arbitration it can invoke a detached and subconsciously uninvolved experience, when compared to the more intense environment of a physical setting.
This inevitable technical necessity arguably deprives witness examination of its most fundamental element which would otherwise be very determinative of the evidence adduced, at a physical hearing.
Compounded to this ineffectiveness, is the awareness of the fact that, at least in theory, it is possible (although hopefully very unlikely) for witness coaching to take place through mobile or email communications.
This would be impossible to perform at a physical hearing and, by contrast, impossible to exclude at a virtual one.
Furthermore, the gravitas of a hearing must not only be known and understood in theory but also viscerally felt and physically experienced in practice. A witness’ own familiar home environment, during a virtual hearing, is unlikely to assist in having that experience.
This, combined with the continuous absence of direct eye contact, contributes to an overall presentation of evidence that may be less than satisfactory when compared to that of a physical hearing.
It appears therefore, that there is an argument in favour for physical hearings, particularly when , even before this pandemic, attendees were usually positioned in a way that is broadly compliant with current social distancing rules.
With all this in mind, perhaps every effort should be made for physical hearings to still take place, particularly when no lockdowns are in force and where international traveling is not required for some or all of the persons that must attend
A combination of fully digitised, easily accessible data and screen sharing technologies at a socially distant physical setting, could prove to be both efficient and effective without compromising, either the health of the attendees or the immediacy of due process in submitting and scrutinising evidence.
FCIArb is a practising Solicitor-Advocate (Higher Courts Civil Proceedings in England & Wales) and undertakes his own advocacy in his arbitration practice.