Technological advancements and heightened technical awareness are profoundly changing how individuals and organizations interact with each other. Technology is not only altering the way business is conducted but also generating unique conflicts and altering the ways in which disputes have been resolved traditionally. Parties now expect to be able to report a problem immediately at incidence and receive quick assistance to resolve it transparently and effectively. To meet these expectations, dispute resolution professionals need to leverage technology effectively.

Use of technology to gather, review, and present evidence in a defensible and efficient manner can give parties the required insight to establish facts,and possibly strengthen and expedite their case at all stages of a business dispute or complex litigation. This is evidenced by the increasing popularity of Online Dispute Resolution (ODR) in mature jurisdictions. Further, acceptance of Electronically Stored Information and increased reliance on it in litigations and alternate dispute resolution (ADR) mechanisms have propelled the attractiveness of eDiscovery as a dispute resolution tool. We are thereby witnessing an increase in the inclusion of technology in litigation/arbitration strategy of corporates and legal practitioners.

Using e-Discovery as a Tool in Dispute Resolution or Regulatory Inquiry

Entities carry out their business through the actions and decisions of its management and employees. These actions and decisions are demonstrated and effectuated mostly through electronic information in various formats. Parties involved in disputes often need to gather process and review evidence and may need to make disclosures in the form of documents or data to courts, investigators and regulators. Thus, the information discovery phase is critical to resolving a dispute.

Electronic discovery (also called e-discovery or eDiscovery) refers to a process where electronic data is

sought, located, secured, and searched with the intent of using it in a civil or criminal case. This can include emails, text documents, spreadsheets, images, PDFs, media files, web sites, calendar items, metadata, etc. Malware, viruses, spyware, and software code have also been used in discovery processes. eDiscovery can also enable evidence management and analysis of large volumes of electronic data sets, thereby helping parties resolve disputes in a cost-effective, swift and transparent manner.

Discovery of electronic information can provide a superior view of the events leading up to a dispute and is significantly more efficient than searching through physical information and documentation.
Further, since eDiscovery is typically undertaken pre-trial, each party knows the merits of their respective cases right at the outset, thereby paving way for negotiations, ‘out of court settlements’, and speedy resolutions. This in turn reduces legal costs and senior management time otherwise spent on long running dispute cases.

Other Technological Assessments in Dispute Resolution

Technological fact-finding exercise and assessment is increasingly being relied upon to provide valuable insights in dispute situations to support law firms drafting legal opinions on complex technology matters. Inspection and examination of technological evidence helps understand the unique aspects of the evidence, reliability of evidence and its data source along with its underlying issues and facts. Below is a list of few illustrative questions that technological tools can help answer in a defensible manner during a dispute situation:

oHas the external or internal information storage devices been formatted or tampered with? If yes, when and by whom?

oWas there any mass deletion observed or tools used to intentionally destroy evidence?
oWas unauthorized software installed?
oHow robust is a software application and what are the costs of replacing it?
oHasa system or network been attacked remotely or compromised by any malware or is it subject to any form of tampering?

The future of dispute resolution lies in understanding the power and advantage that comes with leveraging technology and thereby investing in relevant human and technology resources

The Way Forward

The future of dispute resolution lies in understanding the power and advantage that comes with leveraging technology and thereby investing in relevant human and technology resources. Leveraging technology tools is not only useful in litigation and ADR, but also in other legal aspects of mergers and acquisitions, corporate governance, regulatory compliance, etc. As with any prior paradigm shifts, the legal practitioners and corporates that take advantage of technological advancements in resolving disputes are expected to excel while others may experience the threat of irrelevance.