Resolving disputes online: the human factor

This article summarises an online discussion held on 23 September 2020, organised by Future of Law: Dundee (FoLD) between

Overview

Graeme Johnston

Around 100 people attended, mostly from Scotland and elsewhere in the UK but with significant numbers from around the world. Our focus was on arbitration and mediation rather than litigation.

The format was conversational and we folded in audience questions throughout, but approached the topic in this order:

  1. Mediation
  2. Arbitration
  3. Where is this going?
  4. Poll
  5. Final thoughts

1. Mediation

Alun Thomas:

Experience so far indicates that online mediation is very different from being in a room together. Pre-mediation sessions to discuss how the mediation will work have been a good deal more relaxed compared with asking someone to come into a legal office for a meeting. With the move online, pre-mediation sessions are also needed to test the tech and to ensure that people don’t have things behind them that they don’t want to share with the other party.

Doing mediations from home, rather than in the foreign environment of a lawyer’s office, has helped with one of the essential benefits of mediation — allowing people’s personalities and humanity to come through. This has bled through into the full mediation meeting. When you’re mediating with someone sitting in their kitchen, it seems to have helped people engage more quickly, and share their thoughts and feelings with lower inhibition than in a more formal setting. Perhaps it helps not to be sitting in the same physical space as the person you’re in dispute with.

So far, we’ve been able to progress mediations more quickly online than in person, as a consequence of which I know some mediators are saying they would prefer to mediate online. It’s cheaper, it doesn’t involve the expense of meeting rooms and catering.

So, my initial experience is that it’s working well, though it can be harder to get a sense of how people are feeling. Charlie Irvine wrote an interesting blog piece recently on the absence of gaze. You may not notice who’s not really engaging. We may just have to learn to live with that.

Alun Thomas

Dr Ula Cartwright-Finch:

Alun mentioned the lower inhibitions and more relaxed nature of an online mediation. There’s a blurring of social boundaries when you see a snapshot of someone’s private life. This engenders empathy without even trying, because we’re seeing somebody — or a dimension of somebody—with whom we can relate. We’re seeing a human being rather than an opponent — and, as all good mediators know, empathy is the foundation for any effective dialogue. We all have families and lives outside work. We’re full people, but we often don’t share that in our working lives, and certainly not with people with whom we’re locking horns, with whom trust is broken. We can all think of online experiences recently where someone goes from ‘work mode’ to talking to their toddler about yogurt.

The second point I think was really interesting relates to the ease with which people communicate about difficult issues. There a few factors that Alun mentioned, one being that in a real life meeting we have a full multi-sensory experience. Now we’ve moved online — until virtual reality ups its game—we have only a fraction of that, displayed on a really small screen. And that reduction is going to dampen our emotional reaction. Think of the difference between comfortably seeing a picture of a tarantula in the National Geographic and seeing a real life one on the table in front of you.

There’s a therapeutic technique where you take someone you find difficult and shrink them down in your head to lessen the impact.

For all the reasons Alun has said, the online approach can help with potentially hostile relationships in mediation.

Dr Ula Cartwright-Finch

Lindy Patterson QC:

Alun, have you found there are fewer successful settlements in online mediation? I have heard some discussion that, because it’s so easy, people may be less inclined to complete it.

Alun Thomas:

It’s a bit too early to say for sure but, yes, the investment in a traditional mediation is huge to get people together in the same space, so this may be a factor. With the move online, it may be more important in the pre-mediation discussions to test whether people are ready to get to a deal. The fact that it’s so easy to get back together again means that you can have more than one pre-mediation session to ensure people are really ready. There’s a lot more flexibility.

Ben Giaretta:

Ula, you talked about people’s relationship with the screen. What about the effect on people’s thinking that they have to sit still. How does that affect the psychology of their thinking?

Ula Cartwright-Finch:

It depends partly on how you position yourself in relation to the camera. I deliberately sit a bit further back so that I can use my hands to communicate. I think people may start to do that a bit more, as it feels more natural.

There may well be something missing, in that you can’t shake someone’s hand, for example. A simple touch on the arm can help with bonding and positive feelings. So there will be something we’re missing.

But there may also be a plus side in that we see someone’s face in the same way. Everyone’s equally represented on the screen. Alun, what do you think?

Alun Thomas:

Yes, I agree. We have to recognise that it’s going to be different and to adjust accordingly. One of the leading mediators in Scotland, John Sturrock QC, is passionate about the importance of having some coffee and food together at the start of the day. It’s not really the same to do that online.

  • Note: at this point, various people attending the event reminisced happily in the Zoom chat about their experience of this.

The other thing that’s very different is that looking at multiple people on screen is very different from focusing on just one. It can be draining to look at five or ten people at once on a screen while managing a discussion.

Going for a walk around the block with someone has been a technique I’ve found useful in mediation. Just getting some fresh air and looking at the trees can help. Though in an online mediation we can say to people, do you want to take a break and go outside? It’s just different. Even little things change the experience, such as the screening effect of reflections on people’s glasses in an online meeting.

2. Arbitration

Lindy Patterson QC

Lindy Patterson QC:

Back in March 2020, my experience was that both parties tended to be sceptical about holding the substantive hearing online. The tendency was to hope that it would be possible to have a traditional hearing after a fairly short postponement. Now, in September 2020, claimants are generally keen to press on with an online hearing so as to obtain relief without delay, but respondents will often argue against this for various reasons.

In the summer, I had an application by a respondent for an unlimited adjournment on the ground that they could not receive a fair hearing online. Such applications have to be dealt with so sensitively where people are uncomfortable with the medium. In that case, we refused the application but have done everything we can to make the respondent feel more comfortable about the medium. We have subsequently had a couple of directional hearings and the respondent appears to be becoming more comfortable.

But as Alun says, things are very different. When I’m scheduling hearings, we’ll have no more than five hours a day. We’ll build in lots of breaks. We discourage parties from giving lengthy opening or closing submissions because it’s harder to maintain attention online.

I think as well that people need to be on their best behaviour. For example, talking over people — which often happens when people are upset or animated—just doesn’t work online.

These are the sorts of things I’ve experienced so far. My view is that as arbitrators we have a greater onus to prepare in advance, so that we can be much more focused in how we deal with the evidence.

I don’t know, Ula, if you have any particular comment on this lack of attention point?

Dr Ula Cartwright-Finch:

It’s been a very common experience — ‘Zoom fatigue’—where we struggle to pay attention over the traditional duration of hearings. There’s a higher cognitive load of an online hearing. There are lots of reasons, but a big part is to do with the imperfections of the current technology — slight audio delays, videos freezing, people dropping out and so forth. We’ve evolved to interact with each other in a perfectly sync’d way. Any asychrony has two effects — the first is that our brain has to run a different calculation to produce something we can understand; the second is that it’s more stressful because in the back of our mind we’re worried that the tech connection may break, that we may not understand or be understood; and we have to try harder to fill in the gaps sometimes. There’s that cognitive load factor.

Another important consideration for arbitrators and counsel is that we have a limited pool of attention. We need to tune a lot of things out and focus in on something. But if we focus on, say, ensuring that our video is working properly, it leaves us less to focus on other issues.

The issue is illustrated by the well-known experiment in which people asked to watch a video and count the number of passes of a basketball will often miss the fact that a person in a gorilla suit walked through the players. This phenomenon is called inattentional blindness — I spent three years of my PhD studying that. The same phenomenon has been replicated in the domain of sound and cross-modally—if you’re engaged in a demanding visual task, you’ll tend to be deaf to other things. Figuring out the tech, looking at documents and a screen leaves less capacity to listen. People will need to have the discipline, and dare, to be brief.

Lindy Patterson QC:

One thing I’ve found is that more people from a party wish to attend the hearing, because it’s so easy online. But it can be distracting. Recently I had a half day hearing which around twelve people from each party wished to attend. I didn’t wish to prevent anyone from attending, but it was agreed that, in order to reduce distraction, most of them would keep their cameras and microphones off. Somehow you have to avoid dilution of your concentration.

Another issue I’ve come up against on a couple of occasions is time differences in arbitration hearings or when taking evidence. It’s important that parties don’t feel prejudiced by having to participate outside their normal working hours. There’s been some interesting discussion about whether it can be said there’s no fair hearing unless time difference is properly handled. We need to come to accommodation where everyone feels they’ve had a fair hearing. In a case where there is, say, an eight hour time difference, it’s probably easiest if it’s one of the arbitrators that is put out instead of one of the parties. But it can be difficult.

Dr Ula Cartwright-Finch:

Yes, I think that time zones issue is really important and not fully appreciated. We may not appreciate how our performance and mood vary across the day. There’s a whole area of science called chronobiology which looks at this. There was an experiment analysing 90,000 surgical events, and finding that surgeries at 9am had a 1% chance of an adverse event, rising to around 4% in the late afternoon danger zone. Another study analysed US sentencing decisions and found that decisions on the Monday after the daylight saving change weekend (where we lose an hour) were 5% harsher.

It is a really important point and we should think about where the tribunal members are, and our own chronotype.

Also—faces are really important in how we communicate. Nothing captures our attention like a face. Our brains are highly specialised for processing faces. There’s a particular area in the visual cortex dedicated to this, and certain neurons fire only when we see a face — or even, just a face in a particular orientation. But this system has limits, and studies suggest we can only really attend to one face at once, which is why “Where’s Wally?” is so hard. So, if you have multiple faces on screen, it’s creating huge noise that’s going to drain your system. So, the approach you’ve taken Lindy of insisting that cameras be off for non-speakers, makes sense.

Lindy Patterson QC:

A participant has raised the question of assessing witness credibility. Much is made of this, and I really understand why, which is that you won’t pick certain things up when seeing someone on screen. You won’t see who has their head in their hands and you won’t see flurries of activity with the lawyers running in and out with notes, etc. But, actually, my sense is that this concern is more theoretical than real, because I suspect it doesn’t make much difference at the end of the day. The fact that a lawyer is running in and out frantically with a note doesn’t make much difference. But what are your thoughts on that, Ula?

Dr Ula Cartwright-Finch:

There has been some research directly on this topic. The courts in England have for some time now allowed video links for certain types of witness e.g. children and vulnerable people. The results aren’t conclusive but there doesn’t seem to be a difference in our ability to detect lies, though that may be because people generally aren’t very good at detecting deception. There is a general tendency to perceive people as less likeable and less credible online. Some expert witnesses are reluctant to give evidence online for that reason. But I spoke with a professor last week who gave evidence online for an inquiry and was delighted she didn’t have to take time out to travel. It’s one of those situations where you’re losing something but gaining something else.

Lindy Patterson QC:

There’s another point being made by a participant who would prefer counsel who’s not speaking to keep their camera switched on so as to show reactions. My own view is a middle ground, that the camera is best switched off for people who are participating only as observers, but that for counsel the camera should always be kept on, with ‘speaker view’ helping with focus.

There was a case a few weeks ago in which a witness failed to switch off their microphone during a coffee break and called a fellow director to ask, “How do you think I’m getting on?” together with some colloquialisms which I needn’t mention. The judge heard all of this and mentioned it in the judgment. It’s a salutary reminder of the need to behave as you would in a more traditional hearing.

Dr Ula Cartwright-Finch:

There was a similar case involving the judge in an English family law case. Microphone control definitely needs attention.

Ben Giaretta:

It seems to me that we haven’t quite got the hang of intervening vocally on these platforms. We either talk across each other or we allow bigger gaps, which makes the conversation more disconnected. How that translates in arbitration hearings is that it can feel very formal. Everyone gives their speech then there’s a pause which can feel unnatural compared with the hearing room.

Alun Thomas:

I think a part of it is that you can see when someone’s finished when you’re in a room, or if the judge is signalling they’d like to hear you. Perhaps conventions should be agreed beforehand e.g. using the hand raising feature. But it’s new and takes getting used to. Though the fact we’re all working through it together can help build empathy.

Graeme Johnston:

One of the participants has raised a question about not everyone having the same standard of technology. An equality of arms issue. Inadequate internet, for example, can be a factor. Do you find this to be an issue?

Alun Thomas:

Yes, there’s a big concern at the moment about ‘digital exclusion’ among Sheriff Court practitioners in connection with the desire to move to more virtual hearings. It’s not something everyone can easily accommodate, particularly unrepresented litigants. You can’t just assume everyone can get on to a laptop, or will have the space in their home, or has adequate broadband, to handle this effectively. These things should be discussed and considered in advance of the main hearing.

Lindy Patterson QC:

It is the concept of due process. There is legal authority now where the court has said that a remote hearing will not be fair where one party is unable to use the technology to conduct such a hearing effectively. What I like about this is that the onus is on each party to ensure that everyone has the necessary set-up: you can’t just steam ahead on the basis that you have it sorted out and that it doesn’t matter what’s happening on the other side.

Graeme Johnston:

A further question from the audience is whether the use of silence is more important online than in a traditional hearing.

Dr Ula Cartwright-Finch:

One factor is that more pauses can help everyone digest submissions more effectively when everyone’s under more load. On the other hand, pauses can break the flow e.g. when there is a delay before documents can be displayed.

Alun Thomas:

Silence can be really powerful in mediation. A mediator may choose to hold the silence and wait to see who steps into it. That might be very different online — it will be interesting to see how that pans out.

3. Where is this going?

Ben Giaretta

Ben Giaretta:

Some thoughts about where this is going—the technology and the social, interaction side.

On the technology, it’s foolish to predict the future but let’s think about two possible extremes. One extreme is that, after the pandemic, we switch off Zoom and go back to the old ways. That’s a real possibility but I do think many of us are now relatively comfortable in using this technology, and there are definite advantages in some contexts, as Alun has highlighted. The other extreme is that we really take this technology to the next level and adopt full-blown virtual reality as opposed to just advanced teleconferencing. That is a possibility and with 5G roll-out it may become more accessible. But I’m not sure people are ready for it. I’m not sure we will be until the entertainment industry takes us there, until the latest blockbuster is only available via VR.

Where does that leave us, between these two extremes? We will have a very mixed picture after the pandemic. There will be ongoing use of video platforms but also some reversion to in person hearings.

My second topic is the social side of mediation and arbitration. We are now connected with people across the world on an equal basis. We can work with people in London, Mumbai, Costa Rica and elsewhere quite equally.

On the chronobiology point, people may become more alive to this and be more likely to appoint people within an hour or so’s time difference. So, an arbitrator based in the UK may be more likely in future to be appointed to a dispute in South Africa — a long way away, but in the same time zone—but less likely to be appointed to a dispute in Hong Kong.

Graeme Johnston:

What do you think about the point raised by an audience member about online hearings having potential to improve access to justice and reduce costs?

Ben Giaretta:

Overall, it should help. There can certainly be some debate about the quality of online justice, but it also opens up access to people who live in remote places or cannot afford to hire a lawyer based near where they live. Though it’s subject to the points about the effectiveness of, and access to, technology.

Alun Thomas:

Perhaps we’ll see cinemas offering up space for hearings! Everything is capable of changing now. I expect we’ll see more hybrid hearings — some witnesses being dealt with online, others not.

Ben Giaretta:

We may also find that governments sell off court buildings, and once that’s happened you can’t go back.There’s a symbolic factor in having large showpiece court buildings to signal that there is an operating justice system. But provincial court buildings may go.

4. Poll

It’s 2025. Assume no pandemic. What do you think the arbitration and mediation scene will most likely look like?

A. Almost all hearings will have reverted to being in person

B. Major hearings mostly in person, others largely online

C. Online hearings will be the norm, in person hearings will be exceptional

D. It will depend mainly on the people involved, and will vary a lot

5. Final thoughts

Alun Thomas:

I think the future approach is going to depend very much on what the people in each dispute want to do.

Ben Giaretta:

We should re-run the poll in six months’ time. Attitudes have changed very fast in the last six months, and that will continue. The technology will also continue to develop, including VR perhaps.

Lindy Patterson QC:

Sometimes the biggest changes are the ones forced upon us, and that’s what we have here. As optimists, I think we’ll make the most of it.

Dr Ula Cartwright-Finch:

Yes, there’s something in psychology called post-traumatic growth, where people go through something that objectively seems bad but helps them to learn and develop. I agree with Ben’s point that things may well look very different in six months’ time with all the ongoing learning.

Graeme Johnston:

Great discussion, thank you everyone. Really enlightening.

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Graeme Johnston

Graeme Johnston

CEO of Juralio, a lawtech company. Before that a lawyer for many years.