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DAS Convention 2017: 'Technology and ADR – The Risks and Opportunities'

Monday 20 November 2017

 DAS.Convention

The fifth annual Dispute Appointment Service (DAS) Convention was hosted this year on November 8th by Locke Lord LLP. This year’s theme, ‘Technology and ADR - The Risks and Opportunities’, successfully brought together members of the judiciary, together with distinguished panels of alternative dispute resolution (ADR) practitioners and academics. The aim of this year’s convention was to engage in exciting discussions on selected topics involving technology and how it impacts areas of arbitration, mediation and construction adjudication. The convention also aimed to keep ADR practitioners abreast with new case management technologies- which are now more prevalent given the increasing complex nature and costs involved in disputes today.

The convention commenced with a welcome address by Professor Dr.Nayla Comair-Obeid C.Arb, President of the Chartered Institute of Arbitrators. She opened the day’s discussions by highlighting that technology in ADR is very important as our minds are always being radically changed by new technology. She emphasised that business relations transcend borders, and that ADR and online dispute resolution (ODR) in particular, are the key to dealing with disputes in a timely and cost-effective manner.

The keynote address was delivered by Lord Briggs, Justice of the Supreme Court. Lord Briggs stated that the use of technology is vital in ‘taking the A out of ADR’ in order to make ADR more normative. He added that the biggest impediment to ADR is the lack of knowledge the public have about ADR, the solution to which he stated lies in the use of technology. A risk to the use of technology in ADR however, he noted, is the possible undervaluing of face-to-face contact which may ensue as technological advancements are made. He added that whilst greater strides must be made to facilitate greater integration between the courts and the use of technology, the human contribution to the ADR process must never be underestimated.

The first panel of the day focused on Online Dispute Resolution and was chaired by Professor Ethan Katsh, Director of National Center for Technology and Dispute. Jim Leason, VP Market Development & Strategy, Thomson Reuters, kicked the panel’s discussion off by stating that ODR is not only about artificial intelligence and robots, contrary to popular belief. He added that ODR provides the courts with a better pipeline to manage workload, enables electronic filing and promotes innovation in private and third-party sectors.

Mark Beer OBE, Chief Executive and Registrar General, DIFC Courts, was next in line to contribute to the ODR discussion. He praised the City of London for being number one in dispute resolution and for having the best lawyers, mediators and judges. As an instrumental part of launching Dubai’s first ‘Smart Court’ in 2016, which is fully equipped with video conferencing technology that enables individuals or small business to bring their disputes, Mr Beer emphasised that ‘connectivity is king’. He ended by asking the very pertinent question, of whether the rise of technology in ADR would render ADR practitioners obsolete.

Mr Richard Hayler, Managing Director of Independent Betting Adjudication Service (IBAS), and Mr Graham Ross, a UK lawyer and mediator of were also distinguished members of the panel.  In describing the challenges faced in ODR, Mr Hayler added that the easy access to ODR by members of the public could see an increase in the number of vexatious and frivolous cases as people find the service more and more accessible. In closing the first panel’s session, Mr Ross stated that “if ODR techniques become woven into the design of the court system then the debate about whether or not to compel ADR may simply become obsolete”.

The second panel, chaired by Professor Dr. Nayla Comair-Obeid C.Arb, comprised: Professor Catherine Rogers, Founder, Arbitrator Intelligence, Mr Steven Finizio, Partner, WilmerHale, Mr Paul Mason, International Counsel, International Mediation Institute and Ms Katie-Beth Jones, Business Development Manager, Opus 2 International. The second panel tackled the topic of ‘Exploiting Technology in the ADR process’, and was kicked off by Mr Mason who joined in via videoconference.  He expressed how videoconferencing is being utilised more and more, especially in international cases. He described the advantages of this increased technology especially in international arbitration as including saving time, energy and money for all parties involved. The disadvantages he stated, however, include: systems not working properly, compromised privacy and security, and issues of neutrals being unable to adequately assess body language during proceedings. To facilitate successful arbitrations by videoconference, he suggested that the parties invest in secure IT connections, make sure there are no IT issues and position cameras to replicate face to face contact. The other panellists echoed the same thoughts, with Ms Katie-Beth Jones concluding that ADR practitioners should allow technology to deal with the cumbersome tasks as practitioners deal with the substantive work.

The third panel of the day dissected the theme ‘Legal Framework and Institutional Guidance’. The panel comprised: Professor Julia Hornle, MCIArb, Professor of Internet Law, Queen Mary University of London, Mr Andy Rogers, Director of Communications, CEDR. Ms Samanta J. Rowe, Partner, Debevoise & Plimpton LLP, Mr Nick Matthew, Head of Operations at FACT and was chaired by Mr David Wilson FCIArb, Vice Chair, ICC Commission on Arbitration and ADR.

The panel shared the view that technology not only speeds up the process of ADR but can sometimes cause an overload of information.  The message that ADR practitioners must be very careful in handling data also resonated with this panel. Ms Samantha Rowe described it as a balancing act in ensuring that sensitive information is never disclosed and ensuring that cyber security costs are not extortionate or disproportionate. With regard to improving security, Mr Matthew added that companies should have a better understanding of how their client data is stored, be vigilant in training staff on issues of security and take measures such as encrypting emails and sensitive documentation.

Mr Mark Appel, International Arbitrator, ArbDB Chambers, led an interactive workshop to discuss different scenarios involving technology and ADR. The session, which was well received by delegates saw the day’s discussions brought to life as various ADR practitioners discussed how they would grapple with the issues raised with reference to best practice in their respective fields.

To close the day’s discussions, the fourth and final panel delved into the topic of ‘Technology of the Future’. The prestigious panel members included: Mr David Harrell FCIArb, Locke Lord LLP, Ms Joanna Goodman, Writer, IT columnist at Law Society Gazette, Rebecca Fennessy, Director of Technical Solutions, Inventus and John Tackaberry QC, F.CIArb, 39 Essex Chambers. The fourth panel was chaired by The Rt. Hon. Lord Dyson, 39 Essex Chambers.

Mr Harrell echoed the thoughts of the previous panellists by adding that technology is redefining the ways in which labour is needed and queried whether people are being replaced by technology in today’s world. Ms Goodman brought an interesting perspective stemming from her interests in artificial intelligence, robots, chatbots and virtual assistants, all tools which she described are becoming increasingly popular in the world of ADR.

The fourth annual DAS Convention was exciting, informative and stimulating. The theme of ‘Technology and ADR - The Risks and Opportunities’ was fully explored with excellent contributions from panellists and convention attendees alike. The main takeaway from the event is that technology, now more than ever, plays a vital role in the world of ADR. As more practitioners embrace this new way of solving disputes, they must also be alert to the risks and the many opportunities that technology provides.