6 min read
Online dispute resolution methods such as digital arbitration are growing in today’s increasingly technological world. As evidence of this, many legal practitioners are becoming more aware and skilled in tech-enabled tools to facilitate procedures. Now that we seem to be approaching an inflection point, it’s good to step back and understand digital arbitration further. To do this, we invited an expert on all things tech and legal, Mark Deem. In this Justice Talk, we put digital arbitration on trial to see its merits, challenges, and if it’s the right career move for legal practitioners. Online dispute resolution methods such as digital arbitration are growing in today’s increasingly technological world. As evidence of this, many legal practitioners are becoming more aware and skilled in tech-enabled tools to facilitate procedures. Now that we seem to be approaching an inflection point, it’s good to step back and understand digital arbitration further. To do this, we invited an expert on all things tech and legal, Mark Deem. In this Justice Talk, we put digital arbitration on trial to see its merits, challenges, and if it’s the right career move for legal practitioners. Mark Deem: At the Convergence of Tech and Law Our guest is no stranger to legal tech. Mark Deem is an expert in commercial law and is currently a Solicitor-Advocate and Partner at Mishcon de Reya LLP. His experience in technology, media, and telecommunications is second to none, having handled multi-million dollar disputes in the field. In terms of arbitration, Mark has faced disputes from Hollywood films all the way to electronics issues. With his experience, we thought he would be the perfect expert to join us and put digital arbitration on trial. Plus, he’s also putting AI on trial in his upcoming book (more on that later). So without further ado, let’s begin. Opening Statement: Why Go Digital? “I think arbitration is just one way of resolving a dispute. And fundamentally, I'm somebody who likes to deal with disputes. But the compelling part of arbitration is that both parties arrive having decided that this is going to be the basis upon which their dispute is going to be resolved.” says Mark when we asked what urged him to choose a career in arbitration. “Now, why digital? What are the benefits of digital?” says Mark, “Well, I think this is where we're all heading at the moment. What we have seen over the last 15 to 20 years is that disputes are growing in scale, and with it, more data is being created.” This accumulation of data is what Mark sees to be the catalyst for digital becoming a more attractive option to handle disputes. These data come in many forms — from documents submitted, evidence and merits, and even the administrative files that are needed in order to conduct arbitration. All of these data needs secure and efficient management especially since arbitration cases can often involve sensitive and confidential information. “Now, we either have to deal with arbitration in a manual way, which is becoming increasingly difficult. Or we can start looking at digital ways of speeding this up and becoming more efficient. And so for me, the route through interdigital arbitration is using technology to speed up the process.” Mark explains. He even quips how lawyers have a real risk of drowning in paperwork without the assistance of technology. And when we asked Mark about what is his favorite application of technology in arbitration, here’s his response, “A technology which I think is incredibly useful is predictive coding or the ability of the technology to rate and promote documents that may be more relevant to the case. That technology uncovers a mass of material and helps us get to the heart of the matter at hand.” The Examination: What it Takes to Succeed Now that we know the justification about why going digital in arbitration is a fit response in today’s world, we take a look into how it can be used as a catalyst for positive change — both for an arbitrator’s career and for the world at large. From a career point of view, Mark says that one needs great listening skills to succeed in this field. “One of the most important skills for lawyers and arbitrators is the ability to listen and evaluate the information as presented. That sounds like a trite thing to say, but it's very easy to only listen to parts of the answers, rather than appreciating that people may be speaking from a certain context.” Mark expounds by saying that in order to resolve disputes, even in digital setups, an arbitrator has to listen intently. “You have two competing parties who are putting forward different viewpoints. Listening to the way that the narrative emerges is incredibly important and is key to understanding how the dispute needs to be resolved,” he explains. Other than soft skills such as listening, one also has to have the necessary tech skills to reach greater heights in the field of digital arbitration. “I think it is necessary to have technological skills and capabilities to really cut through and make it work,” Mark says. “There is a real risk if you don't scale up in an appropriate way and you don't have great technological or human bench strength,” he explains. “You can't maintain efficiency when you start having larger cases because the volume of materials and the scale of the paperwork makes the process a lot harder to manage. You start devoting more time managing the process rather than actually conducting the arbitration.” The tech is there to help arbitrators manage the case better and faster and to unlock this ability, they have to have some level of technological know-how. Luckily, many tech tools are now available and provide intuitive and user-friendly platforms. Exhibit A: Personal Experience on Digital Arbitration In his prolific career, Mark has had personal encounters with how technology was used in arbitration. “I had a case in the IT sector a couple of years ago and it had a very large disclosure exercise,” he opens, “It looked as though there were potentially 31 million documents that will be responsive to the disclosure exercise. Now, that was going to be very difficult for the lawyers preparing the case, but it was going to be equally difficult for anybody who will be hearing the case.” At this juncture, tech was used to help sift through all the noise. “By using predictive technology to identify and go through all the documents, and with more senior members of the team helping empower that predictive process, we were then able to take that 31 million down to about 650,000 documents which were subject to manual review.” “The initial reaction of anybody looking at that is ‘Well, how can you have faith you did not end up throwing away some very significant documents along the way?’” Mark says, recognizing that many may question the quality of justice that could be served after filtering that many documents with the help of tech. He counters this by saying, “By maintaining and conducting the manual review, you get reassurance because you still have that human in the loop, which I think is important.” he explains. “Using technology to augment human understanding, and then making sure that the human remains in the loop.” Not only did this process save the lawyers and arbitrators from piles of paperwork, but it also saved the client from astronomical fees. “We ended up with a very truncated, but nonetheless high-quality process which enabled efficient arbitration. And what was particularly important in that regard is, there was no way that a client would ever be able to afford the cost of a human review of 31 million documents. By using technology, it became manageable from a human resource and financial point of view.” Ultimately, Mark believes that although the technology was crucial, the human touch was also important to make sure that a level of trust is maintained. “It was a case of augmenting the intelligence rather than simply replacing it.” he notes. Questioning: Resistance to Tech “I think the main source of any resistance towards digital arbitration will come from a person's response to technology.” Mark opens when we asked him about an issue on digital arbitration. “If you have somebody who approaches it from a technophobic point of view, who doesn't feel comfortable with technology, I think a degree of resistance is inevitable.” Mark explains that it could stem from the culture of the legal profession, “We as lawyers are creatures of habit, in many ways, we take a certain comfort in doing things the way they have always been done. And so I think there'll be a lot of people who will approach any form of dispute resolution who will want to conduct it in the same way as they have always conducted it.” “So the biggest barrier of digital arbitration adoption will be whether or not someone is approaching the technology with an open mind — whether or not they are technophobic or technophiles.” he closes. However, Mark hopes that more legal professionals start embracing technology in the future in order to propel the industry forward. Closing Arguments: A More Insightful Look The verdict is out and digital arbitration is guilty; guilty of providing better access to justice to more individuals and businesses in solving their disputes. It’s also guilty of providing a great avenue for legal professionals to improve their careers. Mark has given us great insight into digital arbitration. Luckily, he will discuss more in his upcoming book, AI on Trial. The book is published by Bloomsbury and is coming out later this year. “The idea is to take a look at how AI is being implemented at the moment. There are some contributions from various experts and people sharing their views on AI. It will have some recommendations about the ethical, legal, and regulatory framework to make sure that we have an infrastructure that will allow the technology to develop in a way that has greater societal benefit.” Mark tells us, giving us a glimpse of his upcoming book that will surely be insightful.