Coronavirus is spreading and, while we cannot predict the scale of the illness and self-isolation, widespread disruption to contain its spread now seems inevitable. When human contact is not possible, how can those involved in time-sensitive, dispute resolution (DR) and alternative dispute resolution (ADR) processes maintain momentum? Embracing technology such as video conferencing (VC) might provide a solution for some.
VC is already widely used by the public and businesses alike and is permitted in the courts under the Access to Justice Act 1999 (for example, to hear the evidence of witnesses based abroad). The courts are also testing video hearing technology (see the Video Hearings Pilot Scheme, Practice Direction 51V) to enable certain, very limited proceedings to be dealt with remotely. In video hearings, all parties participate remotely in a simulated virtual court. These hearings operate on the basis of three essential principles: open justice; secure hearings that cannot be recorded in an unauthorised way; and ensuring hearings are not attended by others whose presence is not known to the court. Parties must complete a questionnaire to check that the case is suitable and court officials are involved in ensuring the technology works.
Feedback from earlier video hearings pilots, which focused on user experience, found that while more testing was needed to ensure that the court's technology is robust, video hearings are "clear, easy to navigate, and user-friendly". Feedback also acknowledged the huge potential of video hearings for those who find it difficult to travel to court.
Lessons learnt in the video hearings pilots could be useful to those using VC more generally in DR and ADR proceedings. The timely publication of HM Courts and Tribunals Service's (HMCTS) guidance for legal professionals on the use of video hearings (in January 2020), might also prove instructive and useful. (We have adapted some of the guidance in our checklist of issues to consider below.)
Many in self-isolation and new to working from home ("agile working") may be getting to grips with a quite dramatic change in their working pattern. Some will be used to using technology such as Skype and FaceTime in their personal lives but using similar technology in a DR or ADR scenario requires more planning than catch-ups with friends. Parties must be willing to try it and it should only be used when appropriate. Preparation, reliable equipment and agreed rules are crucial for its smooth running.
Overcoming the disadvantages of video conferencing (practice will help)
The disadvantages of VC arise mainly from unfamiliarity with the tools and inexperience in how to behave during the call. Practice will help – as will patience, assistance and goodwill shown by those used to using VC towards those new to the technology (especially in the next few months).
Setting up VC can prove a challenge to those less familiar with its technical aspects. There is an array of VC tools widely available. Seek technical support if in doubt – and practise using the technology with colleagues.
Practical disadvantages to keep in mind (especially when setting the time estimate for a hearing) include the slight delay when the connection is made between different time zones, extra time needed at the outset of the VC for the chair to set the rules, different levels of technical expertise (causing delays of VC failures) and unreliable "tech".
Most importantly from a DR perspective, VCs can create a perceived or actual lack of personal connection between those dialling in. This is not entirely without scientific basis. The human mind can be unconsciously aware of the physical aspects of VC (such as the screen as a barrier, the other party seeming too relaxed/distracted/leaning back rather than in to the screen, people being or walking off-screen …) and interpret them as an indicator that proceedings are not going well or that others are not engaged.
VC, which, at its most basic, forces parties to interact via a screen rather than face to face, can also be hard work. It is harder to focus. Parties must therefore pay attention to non-verbal cues to demonstrate engagement: smile when saying "good morning", be aware of the tone when delivering that "good morning", make obvious eye contact to confirm to whom you’re speaking (move your head in the direction of the person and lean in slightly if necessary) and ask questions to check that people are engaged.
The benefits of VC when the parties fully engage and prepare can far outweigh the disadvantages in terms of costs and productivity: less time spent travelling and fewer expenses multiplied by several groups of people can mean significant savings.
Importantly, as we prepare for government measures to reduce the spread of COVID-19, VC could be the only way to progress DR and ADR proceedings.
Practical tips to consider when considering video conferencing in ADR – a checklist
Here are some issues to consider when considering whether to use VC. In the main, these are gleaned from our experience and the sources listed under "Further reading" below.
- Review the purpose of the meeting/hearing against the background of the facts, complexity of the dispute and specific practical issues. Will VC help achieve overall costs savings and benefit the efficient, fair and economic disposal of the issue/dispute? Obvious benefits include less travelling time, reduced expenses and increased productivity.
- Weigh up the disadvantages of training people on the technology against the benefits of a VC being the only way to comply with the timetable.
- Long, complex adjudication hearings with lengthy submissions or multiple witnesses/experts are unlikely to be suited to VC, whereas procedural meetings or hearings involving succinct issues with few witnesses might be appropriate.
- Mediations requiring a potentially heated joint meeting might be unsuited to VC, but those involving sequential caucus sessions between the mediator and each party might work – even if the mediator has to set up two workstations in two different rooms!
- Meetings between experts could work well – but they might need to ensure they have suitable document-sharing technology set up so that they can access and consider documents at the same time.
- Settlement meetings between parties involved in court proceedings could also work well with preparation.
Prepare well to avoid technical mishaps
- Pay attention to the venue: arrange (in advance) a quiet, private room with minimum scope for distraction/interruption and agree security arrangements (including confidentiality, specified attendees and whether to record).
- Check the equipment: agree on reliable technology, ensure it is secure, accessible and familiar to all and arrange technical training/support if necessary. Check the Wi-Fi connection and source a large screen, microphones, speakers and cameras in sufficient quantity.
- If reference is to be made to documents, set up shared, secure document repositories or document servers accessible only by authorised parties.
Conduct at the hearing
- Dial in at least 20 minutes early to check: the Wi-Fi connection, access to technology, the room set-up (sound-proofed with an appropriate, professional background) and the equipment (connected and positioned for optimum audio and visual communication).
- To start, the adjudicator/mediator/chair should check the technology is working for everyone, emphasise (where appropriate) the confidential [and/or formal] nature of the proceedings, check that only authorised/agreed attendees are present, confirm that recordings are [not] being taken and set out the goals for the meeting and the rules (including clear "turn-taking" conventions, how to deal with interruptions, [mis]use of mobile phones and finish/break times).
- In front of a screen and without human interaction, it can be harder to focus and easy to miss vital information. Human cues (such as nods, smiles or frowns) can be lost in a VC. Parties should adapt their behaviour accordingly and participate fully. For example, use names when addressing another so that they are sure they are being addressed. Or, ask for something to be repeated if it was unclear.
Face-to-face hearings and meetings are, no doubt, the ideal, but if coronavirus causes further disruption, tools such as VC might enable the DR and ADR of some disputes to proceed as usual.
HMCTS's guidance for legal professionals on how video hearings (VH) work (January 2020)
The EU Guide on videoconferencing in cross-border proceedings (General Secretariat of the European Council)