09 May 2018
Three recent events have given neutrals around the ADR spectrum much food for thought.
One was organised by the CIArb considering the way that ADR was being developed by the introduction of technologies taking advantage of the internet such as AI programs.
The other CIArb event (organised jointly with the Chartered Institute of Building, CIOB) considered the continuing evolution of ADR in a wide range of disputes. I was fortunate to be able to attend this event.
The Civil Justice Council (CJC) have started a review of the future of ADR under the chairmanship of William Wood, QC. The CJC held a Workshop on 6 March to debate the key issues with stakeholders. This was well attended by neutrals and a wide range of users. It became plain to me from speaking at the workshop that change is coming in terms of requiring much greater use of ADR in relation to court proceedings.
All this shows ADR is at a turning point, growing capacity to manage disputes at lower cost with greater speed by using technology.
This evolution will gain further momentum with the implementation of the General Data Protection Regulation (GDPR) on 25 May 2018. Arbitrators and other neutrals will be concentrating now on putting in place measures to protect the data entrusted to them. They will recall the unfortunate experience of the Scottish QC who, after downloading to her laptop documents in a number of criminal cases in which she was acting as advocate, she left the laptop at home where it was stolen during a burglary. Despite password protecting the laptop she was still criticised by the Information Commissioner (ICO), and fined, for not providing the laptop with full disk encryption.
The issues confronting arbitrators, mediators and evaluators multiply once one tries to send lever arches of paper around the parties either physically or via emails. Inboxes frequently have size limits which mean emailing PDF versions of only a few lever arches is simply not possible. Quite apart from the fact that email is usually unencrypted and therefore an email is similar to an open envelope.
Paper causes slow management of ADR leading to cases becoming overwhelmed by unreasonably high costs.
The cost of the costs of ADR is also an expensive headache. One which is easily capable of unnecessarily prolonging the burden of the dispute.
These challenges can be overcome by managing arbitrations and other forms of ADR via a secure, fully encrypted platform held in the Cloud at a Tier 3 or Tier 4 data centre. Think of this as internet banking for ADR and the approach is understood. When was the last time you went to your bank to pay in a cheque? This serves to illustrate the gap which has opened up between commerce and the management of disputes.
In a Cloud based dispute management Platform all communications on the Platform are encrypted. Case documents and hearing bundles are easily uploaded with no impediments such as emails hitting size limits and bouncing back. Concerns about cyber-attacks recede. Delays in progressing cases simply do not happen. There is no longer any need to drag lever arches around. Impediments evaporate which would previously have delayed smooth progress to the final hearing.
Consider the amount of paper (and time) saved just by not copying lever arches of paper, each one containing 500 A4 sheets. The cost savings are impressive. The security is reassuring. The pace at which cases can be progressed to a hearing is a significant factor as neutrals require parties to adopt a cloud-based platform to manage their disputes.
Even the costs of disputes are now capable of being resolved through a range of ADR options in a secure online environment.
Worth thinking about.
Tony Guise is a Director of eARB, the specialist provider of Cloud platforms for arbitral, mediation and neutral evaluation proceedings at www.earb.net. He was a practising solicitor for 30 years and is a past President of the London Solicitors Litigation Association.