As we adapt to the changes in working practices as a consequence of covid-19, David Richards and Dan Miles of Aquila Forensics reflect on their experiences of new working practices, lessons learnt, and practical implications of using virtual technology in dispute boards and arbitral hearings.
Commonly, standing Dispute Board (DB) meetings will often be scheduled every three to four months, throughout the life of a major civil engineering project. In the past, these meetings have involved up to two days travelling each way for the DB members and one day of travel each way for the employer. With restrictions on international and regional travel, the meetings are nonetheless required, in order to fulfil the important dispute avoidance function of the DB. The pandemic has given rise to the use of virtual meetings, which is likely to continue in the future, even if to a lesser extent. Inevitably though, they still bring with them problems, as well as benefits.
One of the primary points to consider is connectivity. Very often, major civil engineering projects are in remote locations that may not be served by adequate internet connections. With two of the four meetings typically being based at site, inadequate internet connectivity can cause significant issues, leading to the meeting being disrupted, or worse, breaking down. Solutions can however, come in the form of the site-based attendees travelling to the employer’s offices, which are normally in urban areas with better connectivity or attendees can, for example, turn off their computer cameras to enhance the connection.
It is fairly standard procedure that a DB meeting will commence with a site inspection to acquaint the DB members on site progress, with the employer, contractor and engineer, in attendance to discuss all salient points. Virtually however, this becomes more difficult, though not insurmountable. The contractor can, for instance, create videos using a drone or video camera (or both), as if the site were being viewed live by the DB members.
Provided the contractor adopts the same sequence of filming that would be adopted in a site inspection, including stopping to cover particular features, the DB members would have little difficulty in appraising themselves of site progress at various project locations. If the virtual site visit is run as a shared screen by the DB, the DB can then pause the video at any point, in order to discuss what has been seen with other attendees.
The afternoon meeting following the site inspection, which is normally used to discuss issues relating to progress, programmes, finances and budgeting, can then proceed as intended.
However, while attendees at a normal meeting are able to filter out unwanted noise, not all computers are able to do that and extraneous noise can override someone speaking. The answer is microphone discipline – only key attendees should have their microphones switched on, or microphones should only be switched on, in order to speak.
The DB members sign a contract signalling their commitment to the process, demonstrated by booking time, which includes travelling time, and scheduling in meetings in their diaries. With travel arrangements made up to three months in advance and costing up to $20,000 per meeting, neither the employer nor contractor, desire to change meeting dates. However, the same reluctance is not afforded to virtual meetings, where changes can be made with as little as half a day’s notice. A potential consequence is that some DB members, who become frustrated with the lack of commitment of others, resign, taking their historical knowledge of the DB with them, which is particularly harmful in the case of a sole member DB. An alternative DB member then needs to be sought out and the appointment process has to begin all over again.
The employer pays the cost of the DB through their 50% contribution and through payment of the contract sum, in which the contractor has included its estimated costs (which would factor in a DB). A DB meeting may cost up to $35,000 for two-days which includes travelling time, travel costs and expenses. Costs in the region of $60,000 per meeting or $20,000 for a single member DB can also occur. That cost reduces to $18,000, if a virtual meeting is held ($6,000 for a single member DB), so a virtual DB meeting provides clear advantages for the employer and contractor (i.e., any reduction in expenditure by the contractor increases its profit).
It would not be practicable to wholly supplant onsite DB meetings with virtual meetings, as the DB gains much peripheral information, beyond the formal onsite elements of its visit. The DB can observe the arrangement of the contractor’s equipment outside working hours, the mood or attitude of the local population and experience the climatic conditions, which builds up its knowledge and understanding of the project, enabling it to be better placed in assisting the parties to avoid dispute.
At the outset of the pandemic, many believed that restrictions would be short-lived and that we would return to “normality” swiftly. Sadly, this has not been the case. Initially, most arbitrations were postponed and timetables extended but now, it seems virtual hearings are becoming the new norm. As we adjust, it is worth reflecting on what we have learnt so far:
Naturally, hearings and cross-examinations are stressful to the parties involved. However, when these are conducted virtually, two competing processes occur.
Firstly, as either the factual or expert witness, one becomes immediately, slightly insulated from the full weight of the arbitration process. In a physical hearing, one is often entirely surrounded, seated in the centre of a room. Down each side, one is flanked by the parties’ legal teams and faced with the steely eyes of the arbitral panel. From behind, one feels the (often disinterested) gazes of other experts, clients and other members of the teams seated in the gallery.
With physical presence, one gains immediate feedback from their appointing solicitors, and opposing counsel as to how one is conducting oneself in cross examination, whether through the passing of notes, or sudden furious note taking, one understands and can interpret the atmosphere of the room. When counsel wish to discuss a point, they mute their microphone and recline in their seats, but one is still present in the room and can observe them.
All of these subtleties become muted in a virtual hearing. One does not have the visibility of all the people present in the hearing, instead one sees only those that have been moved to the ‘front of house,’ which is likely to be limited to the tribunal and the person undertaking the examination. When counsel wishes to discuss a point, they not only mute their microphone but turn off their entire camera, giving no indication of the mood of the room.
At first glance, such insulation may appear to reduce the stress surrounding a hearing, allowing one to focus on giving their own evidence, there is a danger that it removes the obvious and subtle feedback, that continually informs the expert on how they are performing and should be conducting themselves.
Furthermore, virtual hearings introduce an additional spectre of stress not encountered in physical hearings, which is the fickle nature of internet connections. So much of the hearing process is about control. However, the stability of an internet connection is not something parties can always control. This was recently exemplified at a hearing, where during opening submissions, counsel’s internet connection stopped working, resulting in the need for a new laptop to be sourced. Counsel continued with their opening submissions from the laptop camera, rather than the larger conference camera that had been provided. Whilst counsel was highly experienced, this undoubtedly caused additional stress. Later, during the cross-examination of an expert, their internet connection repeatedly dropped, resulting in their evidence being unintelligible, to the extent that they had to change from a Wi-Fi connection to using a 3G hotspot from their phone. This was again clearly stressful for the person involved and would surely have impacted their train of thought whilst giving evidence.
The effective conduct of a virtual hearing is also dependent on one’s access to technology. When one attends a physical hearing, one would be in the presence of counsel and the arbitral panel, would be in front. There may even be a live transcript on a screen and exhibits would be handed out as required.
Where this is conducted virtually, each of these elements requires their own screen, that is one for the exhibits, one for the gallery and one for the transcripts. However, an arrangement of three screens may not always be possible for everyone. Either one of these three screens would not be able to be viewed simultaneously or, each of the three screens would need to be heavily reduced in size. Perhaps, it may not be possible to separate the gallery of people and exhibits. In this scenario, the exhibits would fill the majority of the screen and the gallery of people would become thumbnails, thus further reducing the ability to see their body language and reactions to testimony clearly.
Notwithstanding the number of screens, the type of web-camera and lighting also have a substantial impact on presentation. During the first lockdown, one barrister looked like they were talking from a dark cupboard, due to terrible lighting. Another had invested in a web-camera ring light but wore glasses which resulted in substantial reflection, which unfortunately made him look like a demonic robot. The press has even reported that virtual cats have been in court. While these examples are all rather tame, they still impact the delivery and conduct of the process.
The virtual cat episode, whilst light-hearted, was an example of what can happen when the user is unsure about how to use the technology they are faced with. For that reason, it is important that all relevant parties understand how the technology works, so as not to disrupt the process.
Many virtual hearings have adopted platforms like Zoom, which make use of features such as virtual backgrounds, hats, sunglasses and animations. Whilst such features are not helpful to virtual hearings, understanding how to turn these off or move between breakout rooms is nevertheless important. As this technology matures, the systems used for virtual hearings would likely become more sophisticated in what they can do, whilst also maintaining simplicity for the user.
There is a plethora of resources that provide invaluable advice on how to conduct oneself at a (physical) hearing, covering training on how to deliver one’s opinion and how to fulfil professional and ethical duties owed to the tribunal. Practical tips, like turning to face the tribunal when giving responses are also plentiful. With the necessitated growth of virtual hearings, much of this advice will need to be updated to recognise these new challenges.
Hearings conducted by web camera mean that it is no longer possible to turn and face the tribunal only, as by looking at a camera, the speaker is effectively looking at everyone. Such practical points will mean that guidance is likely to be required on questions such as, whether:
To date, WhatsApp has obviously been a popular option as a method of communication, but then it is essential that experts are removed from this once they are in purdah. While none of these items lessen the benefits or effectiveness of virtual hearings, they pose new questions that will require further exploration.
Clearly virtual hearings provide cost benefits for clients. They also give increased flexibility in respect of attendance and can potentially reduce the duration of arbitrations. However, these benefits come at the expense of physical human interactions.
Furthermore, existing advice on how experts should conduct themselves at a physical hearing will need to be updated to reflect the challenges the virtual world brings.
Aquila Forensics provide a unique blend of highly experienced experts who specialise in construction dispute, advisory and investigatory services. Their Experts are involved in some of the largest international disputes and have provided testimony on quantum and delay issues in a number of jurisdictions and on a variety of projects, particularly in infrastructure, marine, renewables and energy sectors.