The time and costs incurred during arbitration continues to be a topic of much concern for parties. The duration of trial – cross examination in particular – is the biggest contributor to delays. The way cross-examination is presently conducted in India significantly amplifies this problem.
There is a significant amount of time wasted relying on stenographers who are dictated questions and answers. Transcription offers a solution which causes minimal disruption to the hearing while providing parties an accurate record of a hearing.
Historically, transcription was considered an expensive option suitable only for high value disputes with only a limited number of agencies worldwide (such as Epiq, Opus etc) offering these services. But now, technology players are emerging in the Indian market (such as CORD) who provide these services at significantly more affordable and accessible price points. Adoption of transcription is crucial to make Indian an international arbitration hub.
Cross-examination conducted in domestic arbitration in India is typically as follows:
An advocate asks a question;
The witness asks for clarifications, if any, which the arbitrator or advocate clears;
The question is then dictated to a stenographer;
The witness answers the question;
In a lot of cases, the arbitrators dictate the witnesses’ answers to the stenographer, often using words which are not exactly those that were used by the witness.
During this entire process, invariably, the participants’ attention is on the screen where the stenographer’s answers are being typed, rather than on the witness.
Inherent to this approach are several limitations:
The witness testimony is sometimes not an accurate record of what the witness states;
The time required to complete an answer to a question is about 3-4 times the time required to ask a question and obtain an answer;
The speed of cross-examination is dependent on the speed of the stenographer;
The tribunal rarely focuses on the witnesses’ demeanour – the attention instead is on checking the accuracy of the record as typed by the stenographer;
The flow of cross-examination is lost as the time gap between questions is significant.
Transcription offers a verbatim record of everything spoken during a hearing (barring any specific portions which the tribunal may choose to say off the record). It does not require witnesses to slow down, and it does not interrupt the flow of questioning in any manner. Several technology services also offer audio/video recording of the hearing to enable further evaluation. This manner of conducting trial – which is a standard feature in international arbitration, but which has unfortunately not yet percolated to domestic arbitration – offers several distinct advantages:
Hearings tend to be about 3-4 times more time effective;
The accuracy of the record is beyond question, especially since it is possible to verify the accuracy of the transcript post facto by reviewing the audio/video recording;
The focus of parties is on the speaker, thereby enabling a more accurate assessment of demeanour. This is possible both during the hearing, and post facto by reviewing the video;
Lawyers’ arguments can be transcribed to eliminate disputes over whether certain points were argued or whether certain concessions were made.
The ability of the witness to view the questions before answering is preserved in real-time transcription (where the question appears as soon as it is asked); and in near real-time transcription (where the question appears within seconds of it being asked).
Since hearings are about 3-4 times more time effective, there is an inherent cost-effectiveness to processes that use transcription. However, even with this, historically, transcription was not affordable. This was because transcription depended on highly trained and skilled stenographers capable of typing up to 200 words per minute using a specially designed keyboard. The cost was further heightened because of the lack of such trained professionals in India – they had to be sourced from abroad, further adding to the costs of availing such a facility.
However, technological advancements have helped bridge this gap. For instance, in a transcription by existing players using technological tools, sophisticated speech-to-text engines are used in conjunction with a manual review process to provide an accurate transcript. This process reduces the cost of transcription to a quarter of the price that would have been traditionally payable to existing transcription providers. Technology also permits parties to avail recordings of hearings to check the accuracy of the transcript. This brings in an element of quality control which transcends what is offered by traditional transcription service providers.
Transcription has the potential to revolutionize arbitration in India by making the process significantly more time and cost efficient. Parties have increasingly started embracing this technology, but it is only wider adoption that can make a significant impact in the overall arbitration landscape.
The author is a partner at Keystone Partners and Consultant with the Centre for Online Resolution of Disputes (CORD).
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.