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Dispute Resolution Post COVID – Strategies for Efficiency and Success

  • Market Insight 14 June 2020 14 June 2020
  • Global

  • Coronavirus

Dispute Resolution Post COVID – Strategies for Efficiency and Success

COVID-19 has caused the postponement of many hearings.  That, in turn, has caused a very great deal of discussion about alternative hearing arrangements.  Counsel and parties alike have been forced to make virtual hearings—in one guise or another—a reality.  Particularly in international proceedings, it seems inevitable that virtual hearings are here to stay.  But that is only scratching the surface of some of the possible changes that the impact of Covid might bring to the arbitration community. 

In this article we consider some of the variety of strategies and steps clients and counsel can take to get the most effective results at a time when there is considerable uncertainty both in terms of how disputes can be run and how hearings can take place.  We address some of the issue around virtual hearings but these are also issues that are of more general application in relation to the effective running of your dispute.

Those who suggest that virtual hearings are likely to become the norm point to numerous benefits.  They cite, for instance, cost savings on travel and hotels, an acceleration of the slow journey of arbitration to a paperless world, a greater ease in fixing hearing dates and greater flexibility on timing and duration of hearings, and environmental benefits.  There are undeniable benefits.

On the other hand, those of a more cautious disposition point primarily to a total reliance on IT systems, where one weak link can stop progress completely, and the absence so far of reliable standardised technology.  They cite the added complexities of marshalling different languages, and the associated translations required, remotely.  Indeed, the authors of this article have been involved in arbitration proceedings where simultaneous interpretation was required but the hearing centre agreed on by the parties had insufficient bandwidth to accommodate the necessary connections.

Additionally, virtual hearings raise questions of confidentiality (how do we make sure who is in the room with each participant, and how do we know this connection is secure?) and practical considerations such as marshalling the timings to fit with time zones. 

It seems likely that virtual hearings require an adaptation of style and tone from the advocates.  What might be impressive in person could well leave a less positive impression virtually.  The effect of cross-examination, which can depend on maintaining a rhythm, seems very likely to be different. 

At least until the technology is perfected, parties may be required out of necessity to reach agreement on more and different matters before the hearing takes place, in order to permit it to run smoothly.  This agreement is likely to go far beyond a simple video-conferencing protocol and extend to such issues as documentation, witness examination (in terms of format and timing, as well as asking whether it will assist the tribunal at all) and even whether more complex arguments should be pursued in the same manner (if at all).

Simplicity is likely to be the key if virtual hearings are to be effective. But it also seems likely that increased simplicity will require a greater measure of agreement between the parties than might have been the case in the past.  To give the best chance of agreement, and therefore of a successful virtual hearing, start planning as early as possible in the procedure and explore options with your counterparty and the tribunal (who should assist the parties to reach agreement on such issues).

So, how can you and your legal team manage the process, from the beginning of a dispute to the eve of a virtual hearing, to make the best impression?

Taking some of the above points into consideration, and putting aside the practicalities of actually running the hearing, you may wish to explore the following as early as possible in order to help make a success of it:

  • Should you shorten your pleadings? One of the curses of the modern arbitration has been the introduction of lengthy submissions and the repetition of the same arguments in later pleadings, oral presentation and post hearing briefs. But if you want the tribunal to get to the real issues faster should you put more effort in encouraging your legal team to keep the pleadings concise.  Carefully consider the presentation of arguments taking into account that the documents you write may only be viewed electronically.  Our experience is that electronic pleadings are not read in such a linear way as their paper counterparts.
  • Can you use technology to make your submissions easier to read and use? Consider making full use of hyperlinks, internal and external, within your submissions in order to take readers directly to the documents you want them to see.  This can be particularly effective for arbitrators who struggle with finding documents electronically.  Consider too where your hyperlinked documents will be stored: locally or remotely? 
  • Can you limit the use of witnesses and experts? Are your claims substantially dependent on witness or expert evidence or can part of those claims be determined in writing on the basis of documents? If elements can be determined in writing try to persuade the tribunal to do so early on in the proceedings.
  • Do you need to deal with all elements of the case at a hearing?  For example if you have ten sub-claims but the majority of the value is in two of the claims, do you want to deal with only two at the hearing and allow the remaining eight to be determined (partially) on paper?
  • If your claims are dependent on witness evidence would it be possible to agree some of the facts before the hearing, so that the cross examination can be shortened and made more direct? Feedback from tribunals is that it is more difficult for all concerned to concentrate in virtual hearings.
  • Can you get your experts to agree on at least some of the key issues? Often insufficient effort is put into encouraging experts to agree on issues in joint expert reports prior to the hearing. This may partly be because the default setting in arbitration has been to instruct experts not to agree, if there was any doubt.  Do you want to revisit this approach for the purposes of efficiency in virtual hearings?
  • Can you reach agreement with the other side on lists of issues? These can be tremendous tools to help the Tribunal make a decision. But frequently lawyers and tribunals leave too little time to draft up and agree lists of issues. In order to permit the efficient conduct of virtual hearings it may be necessary for tribunals to place greater emphasis on the need for a proper, agreed, and timely  list of issues.

Time will tell how well the disputes world responds to the challenges of COVID-19, but these authors consider there is a real opportunity to effect change to make the process much more efficient and effective for all users.

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How can we help?

If you would like to discuss any of the points or issues raised in this article please contact us.


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