Remote Hearings Hold the Line But Have Hidden Psychological Impact, Report Shows

Remote hearings and tribunals have exceeded expectations since the start of the pandemic and are here to stay in some form, but they had an often-unseen psychological impact, according to a new report researched by BRG.

The report, which consulted with expert witnesses, lawyers and psychologists located in jurisdictions around the world, focused on the psychological impact of conducting proceedings remotely and the extent to which these had affected the outcome of hearings and tribunals.

The majority of those interviewed for the report acknowledged that the virtual courtroom setting, while enabling the arbitration system to continue largely unimpeded, had a psychological impact, both positive and negative, to varying degrees. Expert witnesses responded positively to the additional virtual barrier and familiar surroundings during cross-examination as traditional techniques deployed by lawyers proved less effective. However, some found themselves resorting to imagining the traditional physical environment to prepare mentally for each question and maintain focus and avoid being lulled into a false sense of security.

The psychologist perspective went further, highlighting the subliminal processes that can kick in and sway decision-making, such as associating the frustration of technical issues with those providing evidence or spending more of an arbitrator’s mental capacity on managing an unnatural situation, rather than carefully considering all aspects of the evidence provided. It was noted that decisions were being reached considerably more quickly compared to in-person hearings, although with many cases still awaiting judgement, a clearer picture of the impact may appear over time.

A legal psychologist also made the case for withdrawing video from the equation altogether, thereby allowing decisions to be made based purely on speech and lessening the potential impact of unconscious bias.

Commenting on the findings, Daniel Ryan, a managing director and expert witness at BRG, said: “It was interesting to reflect on the different experiences of remote hearings over the past eighteen months as part of this study, and our findings provoke further thought. As in other aspects of our professional lives during the Covid-19 era, resilience, innovation and flexibility have meant hearings could continue efficiently and effectively around the world. Given that remote and hybrid forums may remain a feature for courts and tribunals indefinitely, some of the less obvious—and subconscious—aspects of the ways we behave in these settings are very useful to consider”.

Chiann Bao, report participant and a member of Arbitration Chambers in Hong Kong, added: “Overall, my experience has been great—better than expected. I’ve had a number of [remote] hearings, and by and large they are working well. As a technique to save time and cost, I imagine the use of virtual technology will continue for certain aspects of the arbitral proceedings post-pandemic”.

A copy of the full report can be found here.