I appreciate that the title of this blog may have put some people off, partly because they’ve had enough of reading about this frankly horrible pandemic, and partly because much ink has already been spilled on the issues arising from the resolution of disputes during it (including by Matt in earlier blogs). However, for those of you still reading, I want to assure you that this is not intended to be a detailed guide, but rather a summary of a few lessons I have learned, in some cases the hard way.
I’ve intentionally referred to “resolving disputes” as many of these lessons have been learned conducting arbitrations during the pandemic, as well as adjudications. I’ve not yet conducted a mediation during the pandemic, so that will have to wait for another day.
My first few points all relate to virtual hearings and meetings.
A video conference is preferable to a telephone conference
For me, video conferencing wins hands down. I have previously conducted arbitration preliminary meetings via telephone conferences and found there to have been communication issues, with things like participants talking over each other. In contrast, I have not had the same problems conducting arbitration procedural meetings using video conferencing, where all the participants can be muted before speaking, encouraged to use hand raising functions, and so on.
The only extra burden of a video conference is the need to wear a suit (at least from the waist up!).
The appropriate video conference platform depends on a number of factors
There are obviously a multitude of readily available platforms that the tribunal and the parties will have access to such as Zoom and Teams, but there are also more sophisticated systems on offer by organisations such as the IDRC, who will manage the process for you, have separate virtual rooms for each party, provide real time transcription, control the bundle, and so on.
I think that the most appropriate system really depends on factors like the size and complexity of the dispute, the amount of money the parties are prepared to spend on video conferencing, and the competence of the tribunal in operating the relevant software themselves. In regard to cost, a Zoom Pro Account costs in the region of £120 per year, whereas for platforms managed by commercial organisations, costs appear to range between circa £1,000 per day and circa £20,000 per party per week for the all singing and dancing systems used on sizeable international arbitrations.
To date I have used Zoom for both meetings and hearings and have not experienced any difficulties (other than of my own making, see below). One thing I would say though is, if your tribunal suggests using a particular platform, log on to the relevant website beforehand and/or download any relevant apps. Phoning a friend using the platform beforehand might also be a good idea, even if the tribunal proposes a test call.
Use the right hardware
The hardware that participants intend to use is easily overlooked. While you may intend to use your work computer, I have learnt from experience that it is important to have a secondary device available with the relevant software or apps loaded, just in case. In my case the motherboard on my home PC died (it made some horrible noises!) about 45 minutes prior to the start of an arbitration hearing. Thankfully, I had my laptop available, but I could also have used my smart phone. Having the option to use a smart phone also means that if your broadband dies then you might be able to resort to 4G.
The other hardware to think about is the camera, speakers and microphone, particularly the latter. I have found that a lot of microphones built into computers are simply not up to scratch, and I think that it’s a must to use either a head-set or a separate microphone. There are numerous low cost examples available to buy and most of them “plug and play”.
However, on the subject of microphones, it’s obviously vital to remember to press mute at the appropriate time, as the judgment in C (A Child) demonstrates. In that case, the Court of Appeal allowed an appeal against a judge’s refusal to recuse herself when, because a remote link was still on after the judge left court, the parties heard the judge making adverse comments about a witness, namely that she was pretending to have a cough and was trying “every trick in the book” in order to avoid answering difficult questions.
Think about the network capacity
This can sometimes be overlooked as one successful video call can lull us into a false sense of security. Not only does it depend on what your neighbours are up to (as the residents of Aberhosan, Powys, discovered), but also those on the same wi-fi network. Teenagers logging on to Netflix half-way through a video conference can cause connection issues, as Matt can testify to.
Make use of test calls
Where the intention is to have anything more than a procedural meeting using a video conference, I think that test calls are important to try and identify any gremlins. Users obviously need to use the same hardware for the test call as they intend to use for the main meeting or hearing, otherwise some bugs might be missed.
Recording the proceedings
One of the advantages of a meeting or hearing via video conference is the ability to record it, and on Zoom I’ve added a time stamp to assist when reviewing the recording.
One very important point to remember though is that, if the meeting or hearing breaks for lunch or a comfort break and you pause the recording, don’t forget to press record when it resumes. I was guilty of this during one hearing and rather embarrassingly around five minutes of questions had to be repeated. I now have lots of “post-its” in appropriate locations reminding me of the need to press record!
Think about the practicalities of administering oaths and affirmations and other issues relevant to witnesses evidence
Normally I would have the appropriate words of the different oaths and affirmation printed on cards for the witnesses to read out and at least bring along a copy of the Bible to a live arbitration hearing, but obviously that’s not possible with a virtual hearing. I have therefore asked the parties to address this with the witnesses beforehand and to ensure each witness has the appropriate words in front of them and, if necessary, the appropriate religious text.
Administering an oath or affirmation is obviously only relevant to arbitration, but there are some other issues that are relevant to the giving of witness evidence in both arbitration and adjudication. In particular, it’s obviously important to ensure that the witness is not able to confer with others while giving evidence, and I have therefore given directions to ensure that:
- The witness’s camera is set up to allow a reasonable part of the interior of the room in which the witness is located to be shown on screen and that any virtual background feature should not be used.
- The witness’s mobile phone is switched off while giving evidence, and nobody else is present in the room with the witness.
- While obvious, it is also prudent to remind parties to ensure that each witness has access to the complete bundle, whether in hard or soft copy.
Prior to the pandemic, I usually directed that all submissions were to be provided in hard and soft copy but, since lockdown, I have only asked for soft copies (subject to service of hard copies by post (or other means) if it is a requirement of the contract). I’ve discovered that this has resulted in some issues, so my tips for those preparing these bundles are as follows:
- Indexing. It is really important that the indexing is clear in order to assist the tribunal in locating a document. I think we can all appreciate that trying to find a particular page in an electronic bundle can often be harder than in a hard copy file with a post-it note sticking out the top.
- Labelling. If labelling files or folders electronically then I would suggest a numbered system for exhibits, followed by a brief description. Without the brief description, the tribunal is likely to have to refer to a contents page each time they want to find a document, which can be time consuming.
- Electric file and folder names. Despite what I’ve said above about providing a brief description in file and folder names, care needs to be taken to ensure that file paths are not too long, as I’m sure we’ve all experienced error messages such as “Destination path too long” when trying to open a document. This can be avoided by ensuring that the path to a file is not in multiple folders, such as Response/Variations/Variations Not Agreed/Variation XYZ, etc. Other favourite error messages are “The path does not exist” and “The extraction could not be completed”, and I tend to resort to my IT support when this happens. Tribunals don’t want to spend lots of time trying to resolve these issues, so if possible resolve them beforehand.
- Word recognition. Most documents saved into PDF are searchable, but that’s not always the case when they have been scanned. Where they have been scanned its helpful to undertake text recognition prior to issuing the exhibits to the tribunal. This saves the tribunal spending time having to do it, and in my experience searchable PDF’s make it easier to navigate documents by searching for particular words. I’ve also found it easier when bookmarking, highlighting words and adding comments in Adobe Acrobat Pro.
- File hosting. In my experience, most electronic bundles are sent via file hosting services these days. I’ve found the likes of Dropbox and WeTransfer quite easy to use and download documents from, but some of the bespoke file hosting services used by law firms have presented problems, for example only being able to download individual documents, and not entire folders. Again, preferably these issues need to be resolved prior to issuing the submissions.
As the tribunal, it’s also very helpful to have a large monitor on which a variety of documents can be viewed, or multiple monitors. For example, I use three monitors in the office, one for my Decision or Award in portrait mode in the middle, with one either side in landscape mode for each of the parties’ exhibits, etc.
Flexibility in the process
My final point is a reminder that parties and tribunals need to show some flexibility in the process as a result of the pandemic, as Matt pointed at the beginning of lockdown.
To date, only one of my disputes has been delayed as a result of the pandemic (a participant was in hospital with COVID-19), but I suspect that issue may arise in other disputes over the coming months due to people having to self-isolate or being ill with COVID-19. Having to self-isolate may not have an impact on some people, but on others, for example those with small children with limited support, it may cut the working day down significantly.
We all need to act reasonably and be flexible.