Originally from Dispute Resolution Journal

Arbitration’s advantages over court litigation historically have focused on its potential speed and cost savings. Yet, these benefits can, and often do, disappear as cases have become larger and more complex and involve more parties. Nevertheless, this does not mean that nothing can be done to increase the efficiency of the arbitral process, even for the larger, more complex disputes. Some improvements—for example, encouraging arbitrators to exert more control over the process—are controversial; others—such as the exercise by the parties of reasonable discretion in any discovery mechanisms they employ in the arbitration—much less so. The approach to increasing arbitral efficiency discussed in this article—the use of technology (or technological aids—these terms will be used interchangeably in this article to mean information and communication technologies, such as email, the Internet, computerized document processing, video conferencing, and the like)—falls somewhere in between.

The use of technology can decrease the cost and increase the speed of and otherwise aid in the arbitral process. But its use is not without issue; it must be done in a way that is fair to both parties, while maintaining their expectations about the process. Fairness in the availability of a technical aid to both parties, however, is not a given. Of course, because the parties have almost unlimited ability to agree on the procedures to be used in their arbitration, they can agree on the use of various technological aids to facilitate their process.2 The more complicated situation, and the topic of this article, is where at least one party objects to the use of the aid. When all parties do not agree to the use of an aid, fairness concerns arise because access to the aid could be an issue. For example, a party may not have high-speed access to the Internet available to it where it is located, Internet access may be restricted by its government, or the size of emails may be limited.