Using “Digital” Arbitrators
By: Linda L. Beyea, Vice President, AAA® Construction Division
At no time in history has arbitration been more impacted by digital technologies. While email and electronic documents already were commonplace, and video technology had been making strides for years, the COVID-19 pandemic accelerated the transition to remote arbitration proceedings and a greater reliance on electronic documents virtually overnight.
The transition happened out of necessity—necessity is, after all, the mother of invention—however, the experience taught us that remote hearings can be as effective and often more economical than in-person proceedings.
The evolution of virtual arbitration and other digital trends make a compelling case for choosing this method of dispute resolution and selecting a “digital” arbitrator—the human kind, not an avatar! These arbitrators should be comfortable with technology platforms and managing electronic documents and knowledgeable about cybersecurity best practices.
Digital arbitrators take advantage of the benefits online platforms provide rather than continuing to do things the way they always have done them.
In recent years, the use of technology platforms in arbitration has been growing. A major reason is that most communications are electronic. Many courts require e-filing, and attorneys have become accustomed to it. However, while email is the primary mode of communication in most arbitrations, email can pose problems such as limits to file-size attachments, and email is not always secure. Therefore, many ADR providers utilize online case-management platforms for case management that provide time and cost efficiencies and increased security. In fact, advocates are promoting the use of such platforms in arbitration.*
Digital arbitrators should be adept at managing electronic documents and hearing exhibits.
More parties are expecting arbitrators to be comfortable with electronic exhibits without requiring the time and cost of preparing hard copy exhibit binders.
Interestingly, in two surveys conducted by the AAA, the percent of party respondents indicating the importance of arbitrators accepting electronic exhibits in lieu of hard copies at hearings grew from 52% to 70% from the first survey in fall 2019 to the second in fall 2021. Furthermore, respondents for whom an arbitrator’s requirement for hard copies had a negative impact on their overall satisfaction with the arbitrator increased from 9% to 17%.
Clearly, the adoption of remote hearings has increased the demand for and acceptance of the electronic exhibits, and this trend is growing.
Digital arbitrators should be savvy about cybersecurity best practices.
Arbitration is private and confidential, and arbitrators must take appropriate measures to protect case data. Digital arbitrators should ensure they employ effective cybersecurity protections such as utilizing a VPN, anti-virus/anti-malware software, multi-factor authentication, a professional email account, spam filtering, and web security protection. Use of online platforms for document and hearing exhibit transmission increases the level of security around such communications.
Summing up: Digital arbitrators can save parties time and cost by utilizing ADR platforms and eliminating the need for hard copies of documents. Furthermore, they increase the level of cybersecurity for the cases they are deciding. While parties weigh several factors when choosing arbitrators, digital and technology skills increasingly will become more significant.
*The Working Group on LegalTech Adoption in International Arbitration, July 2020, Protocol for Online Case Management in International Arbitration <https://protocol.techinarbitration.com/p/1>.
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