Covid is impacting almost every industry, including legal. The law has traditionally been a conventional and ‘old-school business’ but the pandemic triggered a series of unlikely changes in the way legal services are provided. The world came to a halt, so did the courts and other dispute resolution institutions, but gradually we found our stride, settled into our new “WFH” culture and welcomed in new technology. In fact, in its latest guidance, the International Chamber of Commerce (International Court of Arbitration) also suggested the use of case management tools and technology for arbitration.
In the recent past, there has been steady growth in international arbitration worldwide. As per the ICC 2019 Dispute Resolution Statistics, it registered a record 851 cases under its rules. In the legal technology sector, we have noticed this momentum and recognise the correlation between the rise of digital solutions and the rise of online dispute resolution. ODR is often defined along the following lines: an alternative dispute resolution method outside the courtroom using the internet, technology, and an electronic system or solution. ODR can consist of negotiation, mediation, arbitration, or sometimes a combination.
Use of new legal technology
In the legal industry, traditional methods have often stood their ground against the use of ‘new-age tech’, however gradual adoption of technology (reflecting cultural transformations) has picked up pace recently and Covid has accelerated/necessitated this trend. A pertinent example of this is the arbitration space where modern technology has helped and transformed the way arbitrations are executed, from early document sharing to exhibit presentation at trial. In order to bring consistency and to bolster the use of online technology, a panel of renowned arbitration practitioners and legal technology experts (The working group on legal tech adoption in International arbitration) collectively decided to publish a protocol for online case management in international arbitration.
Dispute resolution experts across the board have expressed the ways in which technology can take on the role of a “fourth party” in a dispute and simplify Online Dispute Resolution. In the book Online Dispute Resolution: Theory and Practice it is noted that the fundamental building blocks for an ODR system should be convenience, trust, and expertise. No ODR system will be successful unless it is convenient to use, provides a sense of trust & confidence in its use, and importantly, delivers functional advantages.
So, what are the factors that make online case management an adequate solution for arbitration practitioners? Let’s take a look:
The first building block of this solution should be document management with a high degree of security and safety by default. Ideally, an online arbitration case management solution should have a number of facets and functional advantages such as easy upload/download of documents and optical character recognition built in. Along with this, it should show familiar arbitration features based on the traditional method with an easy-to-use interface. For a case/trial, all documents and media exhibits should be uploaded to a single solution with default folders available, so that all parties can submit the documents through one centralised portal. It should have the capacity to manage multiple file types and offer an all in browser based viewing experience of documents and media.
Email has long been the stalwart of communication in the ADR business. However, transformations in legal culture have led to excessive and bulky email communication. The limited attachment file size has become an obstacle with emails, and data security remains a concern too. These shortfalls with emails have created a space for new solutions to also provide communication capabilities in addition to document management. Therefore, practitioners, institutes and tribunal members can all communicate via the one stop solution without any size restrictions. This means that those ubiquitous bounce backs, miscommunications and long email trails will soon be history; everything will have a time stamped audit trail in the system.
Next point to discuss is a secure and generous storage space for documents. Any case management solution that provides a secure, centralised repository with permission driven access will simplify things. It would keep all documents and exhibits in the appropriate place, from where they can be easily retrieved when needed, based on granular permission controls. An online case management system will ensure that the arbitration records are automatically kept in order and exhibits are easily organised beforehand. This would be a leap in arbitration and would make for a much more efficient practice.
An electronic system also lends itself well to ‘paperless’ arbitration as the entire process should operate via this virtual solution only. This is better for our environment and in line with the #Greenerarbitration campaign run by various arbitration practitioners worldwide to help reduce the carbon footprint of international arbitration.
Final bit of housekeeping is on the subject of diary management. Mismanagement of dates and availability of key personnel does (somewhat unbelievably!) still happen and can be a costly error. Online case management solutions can be synchronized with everyone’s calendars and would empower the tribunal to imprint future dates/deadlines via the solution. The online calendar can also provide a procedural history and keep everyone on the same page.