Arbitration Place, ICDR, & ICDR Canada's: Predicting the Future of Commercial Dispute Resolution
On September 22nd, 2020, the International Centre for Dispute Resolution, ICDR Canada, and Arbitration Place hosted an interactive webinar on Predicting the Future of Commercial Dispute Resolution, as part of CanArbWeek 2020. Participants discussed and debated an array of issues relating to how dispute resolution has been impacted by COVID-19 and how the industry can evolve long-term beyond the pandemic.
Moderated by Steve Anderson (ICDR Canada), the webinar began by dividing participants into breakout rooms to discuss one of five different questions. Attendees spent 30 minutes analyzng their assigned question, then reported back on the key takeaways. The concluding segment featured a keynote speech from Jeffrey Leon ().
Pros, cons, and misconceptions of in-persons hearings
Robin Dodokin (Dodokin Law), reporting for her breakout group, noted that the most prominent advantage of in-person hearings is the familiarity with the proceeding (and hence, ease) for practitioners. In-person hearings make it easier for the tribunal members to interact with each other, especially during the deliberation process. Similarly, from the perspective of counsel, in-person hearings provide more opportunity for informal discussions with one’s clients and opposing counsel.
The major limitation of in-person hearings is that they may require clients and witnesses to travel to the hearing venue. In addition to lost time, travel can be costly for the client and other parties in the proceeding. Travel can also contribute to a lack of inclusivity in arbitrations, as individuals who are unable to leave behind family and other responsibilities are excluded from the process.
Pros, cons, and misconceptions of virtual hearings
Av Maharaj (The Kraft Heinz Company) presented for his group. Fortunately, virtual hearings have allowed arbitration to continue during COVID-19—otherwise, the industry would have come to a halt. Other advantages that come with a digital space is the lack of jet lag (since travel is redundant), which reduces logistical problems and costs. One participant noted that virtual hearings are especially good for parties with disabilities because they increase the accessibility of arbitration. Virtual hearings can also shorten and compress timelines; a hearing that takes five days in person can be completed in three. Because virtual hearings make dispute resolution more accessible, the increased market size provides opportunity for smaller firms to take on international cases, hence bringing new players into the industry.
A common problem associated with virtual hearings is “Zoom fatigue”. This occurs when parties become exhausted after staring at a screen for long hours. Time zones are another big issue with the virtual world; there could be a procedural fairness concern over choosing whose time zone should prevail for the hearing. There is also the concern of trust and privacy: with virtual hearings, you may not see who else is in the room, listening in. Arbitrators have also noticed that the quality of witness testimony is affected, as witnesses’ demeanor may change if they are more comfortable testifying from their own homes or home offices. Finally, there is a loss of informal rapport between counsel, which may reduce their ability to settle cases.
One misconception about virtual hearings is the ability to assess witness’s credibility through a computer screen. As mentioned before, witnesses may be more comfortable testifying from their own homes; however, this can be advantageous to the trier of fact, because the witness is looking directly at the camera and less likely to turn their head while talking.
How COVID-19 has changed arbitration
Kerry O’Reilly Wilks (TransAlta Corporation) reported back for her group, commenting that COVID-19 has affected arbitration in both positive and negative ways, and that those changes are likely to continue beyond the pandemic. The use of virtual hearings significantly opens the process for experts and arbitrators around the world. Without scheduling and travel restraints, arbitration is now a lot more accessible. One interesting comment was the effect of increasing diversity within legal teams. With dependence on technology, counsel will often rely more on younger members of their teams, providing additional opportunities for more junior lawyers. An arbitrator attendee commented on his concerns with assessing witnesses. Due to the absence of body language, it is more difficult to gauge witnesses’ reactions to objections to their testimony, which help arbitrators to assess credibility. Another interesting point was how an individual’s voice is modified when coming from a computer, and therefore may achieve a different impression on the listener.
Jack Marshall (Independent Arbitrator and Mediator) gave his lasting thought on the uncertainty of determining the seat of arbitration in an era of virtual hearings. Traditionally, the seat of arbitration was addressed in the arbitration agreement or the procedural rules. Now, because arbitrators can be anywhere in the world, it is much more unclear and an open question for the industry.
New practices, strategies, and considerations brought by COVID-19
Angus Gunn (Eyford Partners) started by explaining that the blur between professional and personal life has impacted everyone’s practice, including the various adjustments necessitated by working from home. Surprisingly, both mediation and arbitration practitioners are finding that the process takes longer than it used to. This can be explained because hearing days are getting shorter due to zoom fatigue or the need to troubleshoot technology problems. However, all participants agree that it is a price worth paying—longer processes seem to be more likely to produce successful outcomes. A new challenge is that some witnesses are not experienced in virtual procedures and issues can arise when counsel are not physically with them. The possibility of due process infringements was raised by Marc Goldstein (Independent Arbitrator and Mediator), as asymmetries may arise if one side has better equipment, or if counsel is physically present with the client on one side while the opposing party’s witnesses are alone. The consensus was that it is duty of the tribunal is to ensure that both sides have a fair opportunity to present their case.
Marine Assadollahi (General Counsel for ) provided a General Counsel’s perspective, stating that the trend manifesting in the workplace is that virtual hearings are becoming more natural for everyone. She predicts that there will be increased virtual hearings in the future. A short-term trend Assadollahi observed is the tendency to include both arbitration and mediation in dispute resolution clauses. Where so many litigations have been stayed during COVID-19, arbitrations and mediations have continued, and so present an additional advantage over litigation not previously appreciated.
How COVID-19 has changed the client-counsel relationship
Dorothy Quann (Ryerson University) reiterated many of the same themes raised before. She expressed how internal clients are gaining more experience using technology. Where in the pre-COVID world, people might get impatient with slight technology issues, now, clients recognize that disruptions are momentary and have adapted to their prominence in the workplace. Quann raised a concern debated by her small group: will the the informality brought by virtual proceedings erode respect for ADR? Her answer is no, not if we balance a continuing deferential component and authority for the decision, with the comfort level of people operating from their own homes. Some formality of the process will be eroded, but the integrity of the process overall needs to be respected.
Daniel Urbas () turned the discussion to the positive aspects of our COVID-19 reality. He concluded that technology will allow us to see more new faces appearing on panels that would otherwise not appear due to budget or lifestyle costs. This gives the industry a greater selection and diversity of panel members and counsel.
Jeffery Leon shared some of his thoughts on the future of arbitration. The first major theme of his speech was adaptation. The major change brought about by COVID-19 has challenged the arbitration community to adapt, accept, and embrace technology and virtual hearings. The future of arbitration will require flexibility, rather than adherence to tradition, because virtual hearings are here to stay. The second theme was the acceptance of diversity and inclusiveness in arbitration. Leon believes that we will develop ways for arbitration panels to reflect the varying cultural background, geographies, and experience of the parties. The third theme was the advancement of arbitration-specific technology solutions, and the need for greater education on, and access to, technology for participants in arbitrations.
Moving on to specific predictions for the future, Leon asserted that the arbitration community has a duty to assist courts in overcoming their case backlog. Along the same lines, there will be greater recognition of and acceptance for ADR being integrated with courts proceedings; for example, there could be an increasing demand for arbitrators to conduct pre-trial conferences and case management matters, to assist in getting a case to trial faster. Next, in a future that demands flexibility, the finality of awards will need to change; perhaps the arbitration community needs to think about an appeal mechanism. There may also be a demand for publication of awards, as disclosing outcomes may be an effective way to create a body of public arbitral jurisprudence. Adaptation may also mean an increasing demand for class arbitration. Governments and the arbitration community may need to understand and accept the role that class arbitration can play in promoting access to justice. Lastly, Leon predicted that more attention will be paid to settling disputes prior to arbitration hearings, which may increase the use of mediation-arbitration.
This interactive webinar was an insightful, lively discussion and brought together perspectives from counsel, in-house lawyers, and arbitrators. While some concerns were expressed regarding the impact of COVID-19, the arbitration community has in many ways already adapted to this new reality, and will no doubt move forward to embrace virtual hearings in the long-term.