Arbitration is favoured for flexibility of process, and the seamless transition to virtual hearings in the otherwise disruptive COVID-19 era has proved testament to such. A year on, with a significant number of arbitration users having participated in virtual hearings held over videoconference, it is timely to reflect on the way we conduct arbitration hearings and the possibilities for transformation.
This blog considers whether restructuring arbitration hearings, with a shift from synchronous to asynchronous hearing timetables, could enhance the flexibility and efficiency of the arbitration process.
The Synchronous Hearing: the current norm
In the current norm, the arbitration hearing is typically framed by a “synchronous hearing timetable”, where the hearing is conducted in a single, continuous and consecutive seating, whether as part of the final stage of the arbitration process or a segment of the arbitration, and whether in-person or over videoconference. For arbitration hearings conducted in-person, those involved such as arbitrators, counsel, witnesses and parties meet at an agreed location over a particular set of dates, where oral submissions and evidence is synchronously exchanged and examined. The value of a synchronous hearing timetable can be understood in light of the logistics and time-cost concerns in gathering a busy and expensive group of people together in the same place for a cumulative period of time.
However, when arbitration hearings are conducted virtually, the logistical and time-cost benefits of synchronous hearing timetables are perhaps less significant. In fact, participants in virtual hearings often allude to the impracticalities of attempting to replicate the structure and conditions of in-person hearings in a virtual setting, and the different challenges and opportunities that virtual hearings present.
Managing time zones
In a virtual hearing, participants will not convene at a single location and time zone, but instead, will participate in the hearing from their respective locations, often, across varying time zones. As such, the expectation that a full day of hearings conducted over videoconference should endeavour to cover the same ground and run for as long as a full day of in-person hearings is unrealistic, without a hearing schedule that would inevitably compromise the working hours of some participants.
One thing we have learnt from the last year is that, even for lawyers, the average attention span in the virtual setting is significantly shorter than an in-person experience. As such, while hearing sessions for in-person hearings may be scheduled to run for 2-3 hour stretches, hearing sessions for virtual hearings may need to be divided into far shorter stretches to reduce the risk that “screen fatigue” can have on each participant. How can hearing sessions and hearing breaks in a virtual hearing be systematically organised in a way that does not affect a line of questioning or counsel’s flow of argument in oral submissions?
In the context of in-person hearings, a synchronous hearing timetable is typically organised into the minimum number of consecutive days required, to limit the costs incurred bringing everyone physically together for the hearing. This is far less of a concern in the context of virtual hearings, opening up a realm of possibilities, including spacing the hearing out over a longer period, with gaps in between each session or hearing section. This flexibility allows the tribunal and counsel more time to prepare between each section of the hearing, to better tackle the issues in dispute and specific points that are raised, and in turn, even remove the need for post-hearing submissions.
The differences between in-person and virtual hearings invites the question as to whether it is truly beneficial to replicate in-person hearing conditions and the synchronous hearing timetable in the setting of a videoconference room. Instead, perhaps, the arbitration community has the opportunity to innovate a different way of running virtual or hybrid hearings (hearings that may be conducted partly in-person and partly over videoconference), where hearing timetables may not be synchronous as a matter of standard form, but may also take the form of an “asynchronous hearing timetable”, tailored to the needs of each case and hearing type.
Asynchronous Hearing Timetables: a new normal?
An “asynchronous hearing timetable” broadly refers to a hearing timetable that is scheduled in separate segments as opposed to a single, continuous and consecutive sitting.
The concept of an asynchronous hearing timetable is new and appears to have been first introduced in China. The Hangzhou Internet Court developed a so-called “asynchronous court trial,” initiated with the consent of all parties to the dispute and subject to approval by the judge. The “asynchronous court trial” is hosted over an online dialog platform and is divided into three segments: questioning, debating and closing statements. In each segment, parties express their views on the issues in dispute and question the opposing party, and judges may direct questions to the parties, which they are to respond to, in no prescribed order. In the final segment, parties present their closing statements over voice recording.
The Singapore State Courts have also explored the use of asynchronous hearing timetables. When its courts were forced to close their physical doors at the peak of the pandemic in March 2020, the Singapore State Courts Centre for Dispute Resolution introduced a pilot program termed the “Asynchronous Court Dispute Resolution Hearings by email” (aCDR). In an aCDR hearing, parties’ submissions are exchanged over email, with the option to include video or audio files as part of their submissions. The judge follows up with questions, directions or orders to the parties by way of email.
One of the challenges in transposing the concept of an asynchronous hearing timetable into arbitration is ensuring fair and equal treatment between the parties – which means devising a timetable that gives each party a reasonable opportunity of putting its case forward and responding to its opponent’s. However, the inherent flexibility of the arbitral process means that there are many ways in which this could be achieved.
For example, one option could be to divide the hearing into segments (opening statements, witness evidence, expert evidence, tribunal questions, and closing statements) with the parties agreeing to complete certain segments over an online file-sharing platform in accordance with a schedule prescribed by the tribunal. One eminent arbitration practitioner, Dr Maxi Scherer, has suggested a timetable whereby opening submissions are exchanged over video-recordings in an agreed sequence, with appropriate time windows between each submission to allow the tribunal and opposing counsel to review the video-recording submission. The examination of witnesses, answering questions from the tribunal and closing submissions may be dealt with in a subsequent synchronous hearing session.
The simple restructuring of hearing timetables could significantly enhance the arbitration process whilst improving efficiency and saving time and costs. The shift to virtual and hybrid hearings over the last 12 months is an invitation to consider new ways in which arbitration hearings can be timetabled, and to identify new opportunities to tailor the arbitration process to the specific needs of each case. An “asynchronous hearing timetable” could result in a more meaningful and efficient use of hearing sessions, assist the tribunal in better understanding the issues in dispute, promote more diligent and efficient management of the case, result in significant cost savings for the parties, as well as encourage “greener arbitrations”.