Driver Trett Digest Issue 22 October 2021 - Flipbook - Page 15
DIGEST | ISSUE 22
Indeed, in another hearing I was requested by the Chairman
of the tribunal to rotate my camera 360° to afford a panoramic
view of the room to ensure that I was indeed alone, and that
there was nothing around me that was not permitted. Of
course, none of this is necessary in a “live” hearing room
where one is under the watchful gaze of a fairly large group
of people.
I have heard many anecdotes of witnesses being caught
breaching the protocols that are in place to allow a hearing
to proceed virtually with complete integrity of the process.
I have heard of people using their phone during a break,
forgetting their cameras and audio were still rolling, and
in another case where a witness had placed a large panel
of notes on the wall, only for them to be revealed when it
became obvious, he or she was looking at them as counsel
and members of the tribunal had a close-up view of the
person’s face whilst giving their evidence. It does seem to me
though that such stories are very much the exception, and
that the overwhelming majority of hearings have passed off
in the right way.
When I have been giving evidence virtually, I have personally
found it much more intense and tiring than when giving
evidence in a live hearing. In part, I think that this is largely
due to the fact that my eyes have been strained to focus
on one place for the duration of each session, staring at a
screen looking at the person cross-examining me and/or
viewing documents that I am being referred to. Contrast that
to the live hearing where my eyes constantly wander from
the person asking me a question, to a document, and then
towards the tribunal to give my answer.
In one hearing I was involved in, active participants (i.e.,the
tribunal, counsel, witnesses, and experts) were spread
across six different continents and the coordination of this
was no mean feat but was achieved without a hitch.
A testament to all those involved in the organisation. I am
also sure that the parties to the dispute would have been
conscious of the savings made in travel costs had all the
participants had to travel to the same location given they
were spread so far and wide. It is with this in mind that I am
led to think virtual hearings are here to stay, at least in some
form.
It makes perfect sense for a witness that is a considerable
distance away from the hearing venue, and who will only be
required to give evidence for a very short period to do this
virtually. This will not only save costs to the parties but will
also go some way towards making our arbitrations greener.
I think (save for the above point on cost and travel savings) a
straw poll of participants in dispute resolution would show
a preference towards a live hearing over a virtual forum.
However, with little abatement of the effects of the global
pandemic, we are all left with no option but to embrace the
virtual world in which we operate and to be thankful for the
speed in which we were able to adapt to it.
The fact that I can only see the person questioning me and
not everybody who is present in the virtual room is also a
significant difference.
I miss the theatre of the live hearing, where there is
a row of people nodding profusely when I have been
asked a question and they are expecting me to give a
“yes” answer (and then the unanimous incredulity they
show when I actually give a “no” answer).
Virtual hearings are here to stay,
at least in some form.
I also miss seeing the body language of the tribunal members,
whereas now, instead, I am left wondering what sort of
impression I may have made on them, and more importantly
if I think they have understood the answer I have given or
whether I should perhaps elaborate more. I have heard that
arbitrators like the close-up view of witnesses and experts
that virtual hearings provide, as it allows them to study facial
expressions and goes some way to them forming an opinion
on their honesty and/or credibility.
Generally, I have found the technical aspect to virtual
hearings to be very slick and there have not been any glitches
in any of the hearings I have been involved in. The use of a
technical rehearsal for all participants together with a sound
and vision check before giving evidence has played a major
part in allowing the process to work efficiently.
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