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Justice Talk with Ross Russell: Realizing Conveniences through Digital Arbitration
5 min read
Resolving disputes with digital arbitration has become simpler with the development of technology. Digitalization of the process has made it possible for arbitration to be conducted remotely.  With much of the industry still heavily relying on physical processes, getting straight to the facts could be time-consuming. Technology breaks these barriers by having a reliable and convenient way to organize documents, conduct remote hearings, and appoint impartial arbitrators.  In this Justice Talk, we had a chat with the international arbitrator and mediator Ross Russell to talk about how developments in digital arbitration have made dispute resolution more efficient and convenient.  Ross Russell: Speaking from experience Our guest, Ross Russell, is a Texas-based arbitrator, mediator, and attorney who’s been working with dispute resolution in various parts of the world — including parts of Asia and Europe.  Before joining the alternative dispute resolution (ADR) industry, he was a trial lawyer in Texas. Now, as an arbitrator and mediator, he has worked on over 500 cases related to real estate and oil and gas drilling disputes, as well as healthcare and intellectual property — which arose amidst the COVID-19.  Russell said that he has been working on some cases at the same time, with around 30 cases on his plate yet to be resolved, however, he says that the digitalization of the arbitration process has made his job more efficient. “I like to try to stack them as close as possible and try to get them done. As long as the parties and the lawyers agree, and they really tell me what their dispute is, we can get it done. Arbitration is supposed to be quick, efficient, and easy,” he explains.  Despite the goal to be efficient in the process, Russell emphasizes that he lets involved parties brief and discuss their preference, but he hopes to make it as efficient as possible to resolve the dispute at hand by bringing in technology in the process to help them out.  Pushing for the arbitration clause Russell advocates for the inclusion of an arbitration clause in contracts to make dispute resolution better for all parties — making it hassle-free and more efficient, as parties could add their preferences on how disputes would be handled.  Being able to reach an award in a shorter period of time, in a more private context, would also cost parties less in the long run, without having to bring in a lot of law practitioners into the situation.  Although he understands that it would be hard to predict what could happen in every possible situation when drafting the document that includes the arbitration clause, Russell says it is better to have something than nothing — highlighting how his experience proved that an arbitration clause could be amended as the need arises.  “People who write arbitration clauses would often opt to include intricate details onto it, however,  they should keep in mind that it could easily be amended and settled by involved parties before the arbitration procedure commences,” he explains. He adds that having an arbitration clause that is not overly specific could also work for some parties, as a very detailed clause would limit a party’s ability to advocate their position.  “So when they're getting more in-depth with their drafting, I want it to be quicker — fewer submissions, hearings, witnesses… everything — sometimes that's to their benefit, but sometimes it's not. At the end of the day, we’ll only select which rules or specific procedure indicated in the arbitration clause would be useful for the case.”  Looking at arbitration on how it works with tech Although Russell sees arbitration as an evolution of the Court of Equity from 100 years ago, he says that arbitration will also evolve with the intertwining of law and equity, with more complementary, and with better integration of technology.  “In a few decades, arbitration might even evolve into something that will become people’s easy fix to conflicts, especially in areas where the rule of law is weak.” Having been a trial lawyer prior to joining ADR, Russell recognizes the inefficiencies with the system, and if the outcome becomes unfavorable to the party, one lawsuit would snowball into multiple cases and appeals, often costing a good sum of money. Sometimes, he says, it would result in no party being happy and problems were not even resolved.  Russell says that there is much value to arbitration, making the role of a law practitioner more fulfilling, as cases reach resolutions that involved parties would find amenable.  He underscores that part of his job as an arbitrator is to organize and review documents that will help resolve disputes, however, having a stockpile of paperwork would hinder his progress, especially as he handles multiple cases simultaneously.  “A lot of times the biggest hurdle is just getting proficiency of the technology. And some attorneys feel that imposing the technology might  be violating their client's due process rights because they don't understand how to use this,” Russell says, emphasizing that correspondence via email could be difficult as information gets buried in long email threads.  With the COVID-19 transmission risk still a concern, he points out that it compelled people to adapt to technological advancements such as video-conferencing and adoption of online communication tools to cope with travel restrictions  “COVID really has helped accelerate this as well and sort of push people into the technology. The joke back then was when COVID came, we could finally find out how many of those meetings could have just been an email,” Russell says.  He recalls how much time was wasted having to travel to hold hearings, adjusting to local timezones, taking time for breaks, and spending the whole day for a discussion that could be conducted over Zoom or Google Meet, which would only take a few hours.  Bringing conveniences into digital arbitration Russell says bringing arbitration onto the digital sphere has also made it “borderless” with different cultures practicing arbitration differently, yet the same. “A lot more thinking that arbitration is the future because of the way that international arbitration has been so much fairer than a party having to deal with multiple domestic litigations, you know, just looking at what the alternative would have been had the parties not come to arbitration. It makes me very much glad,” he adds.  When it comes to digitizing documents to be used in dispute resolution, he highlights how useful the use of hyperlinks is in PDF. “It’s not necessarily cutting edge technology, it’s highly functional for me as an arbitrator,” he reminisces.  He says that the hyperlink function in digitized documents makes it more convenient, not having to flip through binders full of documents. It also ensures that the right documents are being reviewed to arrive at an amiable award.  Having one central portal for correspondence with parties for documentary submissions would also make the whole process more efficient, especially if every person involved is knowledgeable on how to use it.  Russell brings up the green arbitration pledge as he talks about integrating tech into arbitration, saying that it would not only make dispute resolution more eco-friendly but also more cost-efficient, as huge boxes full of paperwork no longer have to be sent halfway across the globe to involved parties.  With the shift to digital arbitration, he appreciates the systematic approach to dispute resolution that makes the process transparent without sacrificing confidentiality, which is primary factor why parties choose to go through arbitration in the first place. Looking into the future Finally, Russell is enthusiastic about experiencing a blockchain application of digital arbitration. He’s looking forward to having a platform that will centralize the process of laying down the pathway to arrive at a resolution, submitting documents in an organized manner, and making the whole situation time- and cost-efficient.  “We want to resolve disputes. And if we resolve one dispute over the course of the year, that feels good, but being able to resolve tens more over the course of a year feels better — even if the compensation is the same. Being able to affect more people's lives and bring more harmony to the world is our purpose, right?” He adds that he’s also excited about the possibility of turning an award into an NFT, as executed through smart contracts. “I think it would be a cause for celebration, and I would hope any legal professional who’s reading this will join me to celebrate this technological achievement.” We understand Russell’s sentiment on the inefficiency of reading through the stockpile of paperwork to arrive at an award when resolving disputes. With the Jur Arbitration Platform, convenience and the true potential of arbitration is realized because processes are streamlined, appointments are randomized, communications are secured, and a ton of cost is saved.

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Dealing with Subconscious Bias in Arbitral Decision Making
Fairness in decision-making is one of the most important tenets of delivering justice. However, subconscious bias is inevitable in arbitration and it is the responsibility of a neutral to remain impartial throughout the arbitration process.  Arbitrators must serve with professionalism in every step of dispute resolution by acting impartially, fairly, honestly, and diligently. To do that, here’s a short discussion on how subconscious biases can be dealt with in arbitration. Following the insights of Richard G. Waterman’s Thinking Open-Mindedly to Promote Good Decision-Making and Charles Ehrlich’s Ungoverned Brain: A Wild Card in Decision Making, we try to understand and pinpoint aspects in the process that neutrals should be aware of in decision making. Raising awareness on subconscious biases & taking action When presented with evidence, Waterman argues that an arbitrator may already have expectations, preconceptions, and prior beliefs on the matter at hand, but they have to be on the lookout for the possibility of a confirmation bias — in which they could interpret a piece of new evidence to affirm their preconceptions or gravitating towards evidence who resemble oneself.  Since they are not subjected to constraints of judicial ethics, arbitrators must also rid themselves of extraneous pressure, criticisms, and of second-guessing.  They should take into consideration how the dispute was presented by the involved parties and assess how their presentation could subconsciously affect how they interpret the situation. Taking a mental note of possible roots of biases could help rid of obsolete opinions and of inaccuracies of knowledge in memory. After all, one cannot deal with something one is not aware of. Even at the early stages of arbitration, the neutral could start testing their hypotheses — analyzing facts that disagree with the initial hypothesis and taking pieces of information that corroborate the hypothesis and treating them as evidence.  Ehrlich also says that keeping a checklist of factors that could skew decision-making helps an arbitrator become more conscious of the steps to be taken throughout the arbitration procedure. Taking actions on recognizing them and addressing the issue of subconscious bias would ensure fairness in arbitration.  Applying actions to achieve a fair resolution Arbitrators must recognize that one cannot expect a level of perfection when handling conflict resolution. There will always be roadblocks along the way, which is why Waterman reminds that neutrals should keep in mind that their role is to present a solution that is fair to all parties — as a winner-take-all situation may not always be reachable.  Keeping an open mind is also integral by considering alternate possibilities in arriving at a resolution. Arbitrators should actively search for relevant information and not prematurely cut off the search for alternatives.  Once they arrive at a tentative conclusion to the dispute at hand, Ehrlich suggests that they should consider writing down their reasoning on how they got there, and they could also look into discussing their methods to co-panelists as they attend to the case — rather than withholding comments until the very end of the arbitration process.  Deliberations allow parties to listen to each other’s side, which the arbitrator can maximize to acknowledge in good faith the strong arguments presented by the parties, however, the neutral must properly facilitate the process, ensuring a high degree of respect in listening to opposing views.  At the end of the day, an arbitrator’s main goal is to evaluate the evidence provided to them and provide involved parties with a solution that is fair and reasonable. With this, they have to avoid instances of subconscious biases by being able to recognize them, to understand the role it will play in their decision-making abilities, and provide proper reasoning in arriving at a resolution using evidence and by avoiding confirmation bias.  To wrap it up, subconscious biases in arbitral decision making can be dealt with by: Being aware of one’s biasesKeeping a checklist of factors that may affect decision makingAccepting that perfection cannot be achieved, but fairness is possibleOpen-mindednessWrite down the reasoning of a tentative decisionEnsure respect amongst parties involved Jur recognizes that there are no perfect arbitrators, but we are on the quest on providing all parties with the one that would suit their needs and guide them towards a hassle-free way in arriving at a solution that is fair to all. 
Justice Talk with Mark Deem: Digital Arbitration on Trial
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.