REUTERS | Hannibal Hanschke

Surviving a virtual arbitration: it’s all about the preparation (and the wallpaper)

It began with the wallpaper, or, rather, trying to find a camera angle that didn’t feature our feature wall. When that failed (the only other spot providing a clear view of our staircase where my non-A level studying son was likely to emerge at any point post 1.00 pm wearing very little), I then realised that I had to “curate the bookcase”. Should I try to balance up the politics books? What does a section on magic realism suggest about the merits of our case? Where do I put all the Leeds United books? These were not questions I ever anticipated having to address as part of my professional life. Yes, I know I could use a virtual background, but I find them distracting, especially when, like me, you wear glasses, and the real world seems to peak out through the corners.

Welcome, then, to the preparations for my recent six-day virtual arbitration. As I’ll explain, there was still the legal stuff to deal with, on top of some IT challenges, but, once the wallpaper and bookcase were taken care of, it was all largely manageable.

There’s been a lot written and discussed online about the challenges and differences between live and virtual hearings. I want to explore some of them, but my overarching message is that with good preparation, a reliable broadband connection, and an understanding tribunal, the experience is overwhelmingly familiar. Indeed, in some regards I found it easier and more effective.

But first, the challenges. It is mainly a question of preparation.

I had run a courtroom trial with an electronic bundle before, so I was familiar with working my way through a virtual pack of documents. One aspect I had not anticipated was the impact of updated bundles in the run-up to the hearing. With a hard copy bundle, you can just slot in late documents. However, the claimants kept updating the bundle by issuing a new virtual bundle on each occasion. That works fine, but is not much help if, like me, you had been dutifully marking up the previous virtual bundle. It is important to agree a process in advance which would avoid this problem.

Next, the IT. We are most of us now the masters of our own home-based mini-IT complex, replete with 17 screens, auto-focus webcam, headphones and high spec mic. You might not need all of that kit for the hearing, but I can’t see how the advocate could cope without at least one screen for the hearing and one screen for the electronic bundle.

The next most important IT element is to set up the communications link with your team. This requires some thought and, for those among us with a “Reply all” tendency, a little care. In order to try and avoid the wrong messages going to the wrong people, we had a Teams link between my leader and me, and a WhatsApp link for the wider legal team. We had a separate WhatsApp group for the legal team plus experts. I know of other cases where they also set up a link between opposing counsel, but we made do with old school email for that. I can, however, see a benefit in some circumstances for having an easier conduit between the legal teams. In a live hearing, there is always the opportunity for counsel or solicitors to narrow issues or even settle claims simply by virtue of their proximity at the hearing. You will want to think about whether you can recreate an element of that proximity in a virtual capacity.

Most of what I have suggested so far is common sense, or at least what we now know to be common sense in the virtual online world. However, one aspect I had not considered was the appointment of a hearing manager. We used ADR/ODR, who were excellent. Their person controlled who was allowed in to the Zoom meeting as host, but also administered the virtual bundle so that relevant pages would be shared on the screen when needed. Alongside a live transcription service, this really meant that we could focus on the trial.

You also need to agree who will have their cameras on and who will be on mute. In advance of the hearing, the arbitrator said that he wanted to see all the legal team at all times, but that everyone should be on mute save where they were speaking. In fact, by default and then, I think, by preference, we ended up running the hearing with everyone off camera and mute except for the arbitrator, the lead advocates (depending on whether the juniors were running a part of the case) and the witness where relevant. I would definitely recommend that approach. I cannot see any benefit to forcing all members of the legal team to be in the spotlight all day and it is needlessly distracting.

It’s also worth remembering that on a platform like Zoom, it has a function which allows you to change your name and to have a photograph showing when your camera is off. I had prepared for the former (remembering to change my name from Lord Royal Flush following my weekend virtual poker session), but didn’t realise I had at some point used a photo of myself in t-shirt and shades from the summer. I spent the first day frantically trying to get rid of it, but was saved by the fact that the opposing QC had a shot of her riding up a mountainside.

With the right preparations in place, my experience was that once the hearing started, the similarities to a live hearing far outweighed the differences. For example, contrary to what I have heard from many others, I did not find that oral submissions needed to be shorter or punchier. Certainly, when I was cross-examining, I don’t think it was long before I was in the zone and was barely aware that this was a virtual hearing.

Indeed, I think that there are then a number of advantages of a virtual hearing over a live hearing, mainly deriving from the close-up view you have of the arbitrator and the witnesses. It is possible in hearings, especially in more informal arbitrations rather than in court, to see the facial expressions of the arbitrator, but never in as much detail as on a virtual hearing. The same goes for the witnesses. I found all of this genuinely useful in assessing where to push and what to discard. I also found it helpful to have the ability for all to be looking at the same document on the screen, especially in relation to technical aspects.

A useful tip is also to make sure that your witness explains at the start what they are looking at and where the electronic bundle is. That way, the arbitrator understands that when the witness is always looking over up and to the right, they are reading the document and not looking for answers from an off-screen stooge. You also need to try and make sure that other devices are not pinging out emails. Having messages pinging to witnesses during cross-examination is not a good look.

The main challenge we faced was one of inconsistent broadband cover for both of the QCs. There is only so much you can do about that, but you can put in place back-up measures, both in terms of the IT (having a mobile hotspot ready) and in terms of the personnel (the junior advocate really does need the notes ready to take over at the drop of a hat).

My takeaway conclusion was that virtual hearings have a real role to play going forwards, especially in arbitrations. I do not think that there is any reason for them to be limited to shorter or one-day hearings. There are real benefits, especially in international arbitration, in not needing the legal teams, witnesses and experts, to all decamp to far flung corners of the globe. I recognise that some disputes will be sufficiently sensitive that the parties would only feel comfortable seeing the witnesses give live evidence in front of them, but I suspect that such situations are relatively rare. I anticipate that the courts will retain the use of some virtual hearings, but not for trials, and so this remains an area where arbitrations could gain a further competitive advantage.

Oh, and in case you were wondering how the wallpaper went down, my opponent ended her examination in chief with, “Thank you Mr X, you will now be asked some questions by Mr Pliener, who you can see with the very smart wallpaper behind him on the camera”. At least she didn’t mention the “100 Years of Leeds United” just over my right shoulder.

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