Latest survey from Baker McKenzie and KPMG - The Future of Disputes: Are Virtual Hearings Here To Stay?
A UK report launching today by leading global law firm Baker McKenzie and KPMG UK highlights that 70% of surveyed legal professionals said they would prefer a virtual format for interim applications in the next civil dispute they are involved in.
Based on a survey of 250 private practice and in-house practitioners, judges, counsel and clients in the UK, the report ‘The Future of Disputes: Are Virtual Hearings Here To Stay?’ also reveals that 65% believe that all hearings of less than one day, not involving a jury or cross-examination, should be virtual.
There has already been significant investment in technology and training to facilitate the conduct of virtual hearings. According to the survey, the COVID-19 pandemic has undoubtedly accelerated this process with 71% of respondents reported that they had participated in a virtual hearing since the onset of the COVID-19 pandemic, whereas only 44% had such experience in the pre-COVID era. For the vast majority of respondents, the virtual hearing experience was positive, with 66% rating their experience as “good” or “excellent”.
Charles Thomson, partner in the Dispute Resolution practice at Baker McKenzie in London, said, “Undoubtedly, we are seeing a change in how disputes in English courts will be hosted in the future. The pandemic has shown that virtual hearings can bring cost effectiveness and efficiency as key benefits. This is particularly the case in large multijurisdictional disputes as counsel, parties, experts and witnesses are no longer required to travel. 75% of survey respondents believed that virtual hearings are cheaper for the parties than face-to-face hearings.”
Roy Waligora, Head of Investigations and Corporate Forensics at KPMG UK, added: “Improvements in forensic and communication technology will allow court proceedings to continue virtually whilst minimising health risks, reducing cost and simultaneously addressing the backlog currently being faced by the criminal justice system, due to COVID-19 restrictions.”
“Long-term, we are all operating in a digital world and concerns such as those raised by survey respondents around how secure and confidential virtual hearings may be, will need to be prioritised if digital justice is to be future-proofed.”
Amanda Brown, tax litigation partner and Solicitor Advocate at KPMG UK, commented: “The move to virtual hearings would be a beneficial development in modernising the civil justice system. The immediacy of the pandemic has meant that trial and error was required, and there are still some areas that need to be looked at, such as the need for public access in order that justice be seen to be done. It has also highlighted the need for documentary evidence to be managed digitally.
“In the tax courts – where the reliability and integrity of witnesses is usually less of a concern – my experience of virtual mediations and hearings has been overwhelmingly positive.”
With virtual hearings becoming more popular, there is however a consensus that virtual hearings are not suitable for each and every hearing. Over 75% of respondents believed that a “one-size-fits all” approach might not be applicable for virtual hearings, and only 15% would prefer an entirely virtual format for a final hearing on the merits. More than half of survey respondents (55%) were in favour of ‘hybrid hearings’,
where some participants are in the court or hearing room and others join via video/teleconferencing. The concept of hybrid hearings is not entirely new; the cross-examination of witnesses or experts located in other jurisdictions by video-link was a relatively common occurrence in civil disputes pre-COVID. However, the pandemic has shown that many more types of hybrid hearings are possible.
Despite the benefits of virtual hearings, there are a number of challenges that respondents addressed in the survey which may hamper further take up of the format.
46% believed it was harder to concentrate in a virtual setting, a suggestion that Zoom fatigue could be a real issue, particularly for those final hearings lasting weeks or even months. Perhaps more importantly, 56% of respondents believed that the impact of any witness cross examination is diminished by virtual hearings. The ability for witnesses to have access to notes, be coached through an online chat function or through having unauthorised persons present in the room while giving evidence is certainly a risk and is likely to remain a key concern for court users and judges.
Traditionally, technology was always the main question mark hanging over the uptake of virtual hearings and it still remains a problem for some. 46% of respondents considered that IT issues were likely to disrupt virtual hearings. Whilst 56% of those surveyed indicated that more investment in technology and training for the judiciary would be needed if virtual hearings were to remain commonplace.
Contrary to the overwhelming support for virtual hearings, the survey results for mediation tended to portray a different story, with respondents exhibiting a more circumspect attitude toward virtual mediation. Given the choice, the majority of survey respondents (65%) would prefer an in-person mediation to a virtual mediation. This is despite approximately half of survey respondents believing that online mediation is more cost-effective and efficient compared to in-person mediation.
Lereesa Easterbrook, associate in the Dispute Resolution practice at Baker McKenzie in London, said, "The trepidation surrounding virtual mediation appears to be driven by perception rather than experience, as only 21% of respondents had actually participated in a virtual mediation and, of those 21%, the majority reported having a positive experience. Perhaps, as hands-on experience of virtual mediation increases over time, attitudes to the virtual mediation process will improve; like we have seen for virtual hearings."
Charles Thomson concluded, “Virtual hearings have played a crucial role in the administration of justice for commercial parties during the majority of 2020. Based on the results of our survey and our own experience, it appears that virtual hearings are very much here to stay for the long-run, in one form or another. Of course they will not be appropriate in every case but we expect to see virtual hearings continue to be used particularly for shorter, interim hearings that do not require significant or contentious witness evidence and large amounts of documentation.”