Practical Law

It is day 38 of lockdown and a month since I last blogged. Although it is arguable that not a lot has happened in that time (after all, the COVID-19 lockdown continues and our freedom is still curtailed), I wonder if we are at the beginning of a permanent shift in the way people work.

A month ago I talked about how we were all getting used to being at home all the time, and outlined how I hoped people would act reasonably and be prepared to be flexible. On the whole, I think that has been the case (and I’m not going to name and shame anyone who I think hasn’t been reasonable in an adjudication before me!). Jefford J’s judgment in MillChris Developments Ltd v Waters has been useful in this regard (she refused to grant an injunction to prevent an adjudication from continuing, rejecting arguments that the lockdown was sufficient reason to postpone the adjudication until after the lockdown ended), as James Frampton explained. I’ve used it to “herd” the parties to agree a sensible timetable/compromise on a number of occasions.

I also discussed meetings and site visits, and thought I’d pick up on these two points today.

Meetings with the parties

Last time I said that:

“I’m an advocate of meeting the parties…  Obviously, meetings can still take place via video conferencing, although it will not be the same, and they are likely to be shorter (for a number of reasons).”

I’m sure we are all using video conferencing for both personal and professional calls, whether on Skype, Teams or Zoom. In my experience, it seems to be working pretty well. For example, yesterday morning I had a meeting with my two co-arbitrators on a dispute. In the afternoon I dialled into a presentation that had eight presenters and over 100 attendees. Other calls I made during the day only had one other person on the line, but we still choose to use the video function. I don’t think we would have done that a few months ago. In fact, I know none of what happened yesterday would have happened a few months ago, at least not the way it did.

The arbitration meeting would have required more planning, as it is never easy to get three people together. We were able to speak for less than 30 minutes without much fuss. We didn’t need to block out half of the day for that 30 minutes to allow for travel time to get together. It was the same with the presentation. The “old” way would have required all the attendees to head across London to the host’s offices, which may well  have meant a much lower turn out, as well as a significantly longer lead time, and my one-to-ones would also have been conducted the “old” way by telephone or even a more long winded email exchange.

I’m not sure that we will go back to the “old” way and I think that will be a good thing. There is a huge time saving in being able to dial into a meeting. It doesn’t matter whether that meeting is something informal or more structured, like a meeting of the parties and the adjudicator.

Most people are resistant to change, especially when it comes to technology. Even if you are an early adopter who embraces change, there will be some things you may think the technology should not be used for. However, the lockdown has forced us all to think differently about how we work, and actually work differently.

If you want some official guidance on how to conduct a remote hearing, I suggest taking a look at the CIArb’s guide to remote hearings. As that note says, it can be applied to arbitration, mediation, adjudication, negotiation, expert determination, dispute
boards, or any other type of alternative dispute resolution.

When it comes to organising a video conference with the parties in an adjudication, I think it is important for the adjudicator to take the lead (like James Frampton mentioned in his blog). In one sense, a video meeting is no different to a physical meeting. I still provide an agenda and set out the issues I want to discuss. Everyone still has to prepare, and I still need to know who is going to attend. It may be unusual for an agenda to include time limits, but it is harder to control a meeting remotely and I find that helps. I also have to make sure everyone is happy to use the same technology (Jonathan and I opted for a pro Zoom account early on).

I have encountered a few technical difficulties, not necessarily with video meetings, but just because I’m finding a degree of difference between people’s IT capacity/home-work set ups that needs to be accounted for, similarly the difference between the big law firm  and small law firm, and those who are familiar with and not familiar with adjudication at all. Some issues I’ve encountered revolve around the capacity of a home network to download all the documents and submissions, so it has become important to make sure everyone has seen the same emails and attachments as I have. One cannot assume it is the case, especially if the attachments are large. Using a third party site doesn’t always help either. Still, it is much better for the environment since everyone is printing less.

In the post lockdown era, I think we will continue to use video hearings. We may not use them on every occasion (it will all depend on the facts) but I foresee more short hearings especially for administrative issues (like the timetable), things that can be best dealt with with everyone together, rather than the endless stream of emails that such matters can generate. Interestingly, James Bowling said something similar yesterday afternoon at the remote seminar I attended. He suggested that adjudication is taylor-made for remote hearings and thought that demand would increase as more people become comfortable using technology. He also made the point that using technology enables the hearing to be recorded, which could be useful when it comes to natural justice challenges.

Site visits

Last time I said that:

“I think we can all agree that site visits are unlikely for the foreseeable future too, regardless of whether a particular site remains open. That is one journey that none of us needs to make!”

We may not need to attend, but it doesn’t stop a site visit from happening. I know of at least one site visit that has involved the home owner walking around the property with their phone/laptop, showing the parties on the call around and identifying the alleged defects. Another occasion, the site visit was carried out by a drone being flown up and over the building. The adjudicator was able to say what they wanted to see and was taken to it by the drone. I thought that was a marvellous solution and certainly not something that should be limited to the current lockdown.

Stay safe everyone.