In the last 18 months or so, all parts of our lives have changed beyond recognition. Thankfully, for many of us, there have been many adaptations made to allow us to continue going about our day-to-day lives. For me, one of the most significant changes I have faced has been the move to virtual hearings, taking us away from the customary courtroom or arbitration room settings we previously frequented.
The change has allowed the wheels of dispute resolution to continue to turn with little delay and has taken us into a new way of conducting hearings that I think will be here to stay, certainly in part at least.
Author: Phil Duggan, Regional Head of Diales in the Middle East - Quantum and Delay Expert
As a practicing expert witness (in matters of quantum and delay) the contrast was apparent from the very beginning of my first testimony in the virtual world. Whilst I am used to swearing an oath or affirmation that I will truthfully give my evidence, the expansion to declare that I am alone in the room, do not have any documents present (other than clean copies of my reports), that I do not have access to a telephone or any other communication device, and will declare if anybody does enter the room, really brought home the different circumstances to those that I was used to.
Indeed, in another hearing I was requested by the Chairman of the tribunal to rotate my camera 360° to afford a panoramic view of the room to ensure that I was indeed alone, and that there was nothing around me that was not permitted. Of course, none of this is necessary in a “live” hearing room where one is under the watchful gaze of a fairly large group of people.
I have heard many anecdotes of witnesses being caught breaching the protocols that are in place to allow a hearing to proceed virtually with complete integrity of the process. I have heard of people using their phone during a break, forgetting their cameras and audio were still rolling, and in another case where a witness had placed a large panel of notes on the wall, only for them to be revealed when it became obvious, he or she was looking at them as counsel and members of the tribunal had a close-up view of the person’s face whilst giving their evidence. It does seem to me though that such stories are very much the exception, and that the overwhelming majority of hearings have passed off in the right way.
When I have been giving evidence virtually, I have personally found it much more intense and tiring than when giving evidence in a live hearing. In part, I think that this is largely due to the fact that my eyes have been strained to focus on one place for the duration of each session, staring at a screen looking at the person cross-examining me and/or viewing documents that I am being referred to. Contrast that to the live hearing where my eyes constantly wander from the person asking me a question, to a document, and then towards the tribunal to give my answer.
The fact that I can only see the person questioning me and not everybody who is present in the virtual room is also a significant difference.
I miss the theatre of the live hearing, where there is a row of people nodding profusely when I have been asked a question and they are expecting me to give a “yes” answer (and then the unanimous incredulity they show when I actually give a “no” answer).
I also miss seeing the body language of the tribunal members, whereas now, instead, I am left wondering what sort of impression I may have made on them, and more importantly if I think they have understood the answer I have given or whether I should perhaps elaborate more. I have heard that arbitrators like the close-up view of witnesses and experts that virtual hearings provide, as it allows them to study facial expressions and goes some way to them forming an opinion on their honesty and/or credibility.
Generally, I have found the technical aspect to virtual hearings to be very slick and there have not been any glitches in any of the hearings I have been involved in. The use of a technical rehearsal for all participants together with a sound and vision check before giving evidence has played a major part in allowing the process to work efficiently.
In one hearing I was involved in, active participants (i.e., the tribunal, counsel, witnesses, and experts) were spread across six different continents and the coordination of this was no mean feat but was achieved without a hitch.
A testament to all those involved in the organisation. I am also sure that the parties to the dispute would have been conscious of the savings made in travel costs had all the participants had to travel to the same location given they were spread so far and wide. It is with this in mind that I am led to think virtual hearings are here to stay, at least in some form.
It makes perfect sense for a witness that is a considerable distance away from the hearing venue, and who will only be required to give evidence for a very short period to do this virtually. This will not only save costs to the parties but will also go some way towards making our arbitrations greener.
I think (save for the above point on cost and travel savings) a straw poll of participants in dispute resolution would show a preference towards a live hearing over a virtual forum. However, with little abatement of the effects of the global pandemic, we are all left with no option but to embrace the virtual world in which we operate and to be thankful for the speed in which we were able to adapt to it.
This article was originally written for issue 22 of the Driver Trett Digest. To view the publication, please visit: www.driver-group.com/digest-issue-22