Will technology make arbitration better?
For those of us of a certain generation in England, there was one half hour programme every Thursday night that was unmissable. Apparently 10 million of us tuned in every week – yes I am talking about Tomorrow’s World. In some things it was terrifyingly prescient, like the 1979 episode about a mobile phone prototype, which was being tested under strict home office guidelines and had special built in features to “stop anyone wasting our valuable airwaves”. Other episodes were perhaps less prescient – there are millions of us still waiting for that flying car….
Tomorrow’s World ran from 1965 to 2003. The rate of change since the turn of the century has been phenomenal. In a 2001 essay Ray Kurzweil, a technology entrepreneur, wrote: “technological change is exponential, contrary to the common-sense 'intuitive linear' view. We won't experience 100 years of progress in the 21st century—it will be more like 20,000 years of progress (at today's rate).”
Do I think technology will make arbitration better in the future? Yes I do. I also think that existing technology is not sufficiently utilised in arbitration at the moment.
There are two ways that technology can impact arbitration I think we need to focus on and embrace.
· - Technology should be deployed to do the things better that we, as humans, do badly.
- Technology should be used to reduce an arbitration’s impact on the environment.
In arbitrations there are two areas where humans over-estimate their capabilities (i) document review and (ii) assessment of witness credibility. Both are areas where technology could assist.
In relation to document review, technology assisted review is already available and in use, but I question whether it can and should be used more. The research into the accuracy of technology assisted review versus associate/paralegal document review is staggering: one study found that attorney-supervised paralegals believed they had found at least 75% of relevant documents, using search terms and iterative searches, but had actually only found 20%; while the technology assisted review programme identified 75% of the responsive documents. We have progressed far beyond simply uploading documents to an electronic platform and using key word searches, there are highly sophisticated document review programmes that can not only produce more accurate results than teams of exhausted associates, but can do so at a fraction of the cost.
In relation to witness credibility, this is another area where we greatly over-estimate our abilities. In the near future I can see a situation in which technology could be used to assist the decision maker in determining whether or not a witness is telling the truth. We all know that the polygraph is inadmissible in court but it is interesting to recall that when the Supreme Court decided in 1987 that it would not admit polygraph evidence it did so because it did not want to usurp the function of the trier of fact and not necessarily because the polygraph was unreliable. There are tools available now to map facial images to determine whether or not people are lying. So-called Transdermal Optical Imaging identifies blood flows in people’s faces when they are describing a situation. The best thing for me about this product is the manner in which the blood flow manifests itself on people who are not telling the truth. The blood flows for these people decreases in the cheeks, and increases in the nose. The inventor of the imaging process calls it the “Pinocchio Effect.” Quite brilliant.
I also firmly believe that in the arbitration community we have an obligation to reduce our impact on climate change and that technology can and should be better utilised to facilitate this.
- Video conferencing should be the norm, not the exception, for hearing witnesses.
- Air conditioning thermostats should be increased (Texas, I am looking at you!) and dress codes for arbitrations adjusted to reflect this. Japan took this approach very successfully after the Fukushima disaster, requiring all offices to keep their thermostats at 28 C and ditching jackets and ties.
- There should be no more hard copy bundles or correspondence. All arbitrators should be capable of annotating electronic copies as necessary and working with electronic bundles generally.
- Arbitrators should question whether they need to travel to deliberate in person or whether this can be done through skype with screen sharing to discuss documents.
We have the technological tools to make an environmental change to arbitrations, we just need to embrace them.
And, who knows? I might just be appearing at an arbitration in my flying car….I can wait.