Arbitration in the metaverse: Not quite ready for prime time
Monday, July 04, 2022 @ 2:17 PM | By Barry Leon and Anthony Daimsis
Last Updated: Tuesday, July 05, 2022 @ 8:35 AM
In the fist two articles, Anthony Daimsis explains what led to the University of Ottawa becoming the first law faculty to run a moot in the metaverse. Then, from what he observed, he describes the pros and cons of running a hearing in the metaverse. In the third article, Barry Leon comments on these observations and draws on his own experience in conducting virtual arbitrations to offer his perspective on how virtual reality technology may have a transformative role in dispute resolution, even if it is in its infancy.
Will arbitration hearings move to the metaverse and virtual reality? Or is Zoom the foreseeable technology apex of arbitration?
Is the metaverse, and is virtual technology, a gimmick? Or is the metaverse, and particularly virtual technology, the next evolutionary stage of all forms of dispute resolution, specifically for arbitration?
The conclusion? The metaverse has all the makings of the next significant technology innovation for arbitral hearings, but it needs some tweaking — it is not ready for prime time.
University of Ottawa’s virtual moot
On March 26, 2022, the University of Ottawa's common law faculty did what no other law faculty has done — it held a virtual reality moot in the metaverse. The moot was generously sponsored by LeClair and Associates, a London, Ont., law firm, and overseen by uOttawa’s fabulous tech fellows headed by Ritesh Kotak, Ayushi Dave and a wonderful team.
When I was first approached about holding a virtual moot in “the metaverse,” I thought it sounded a little gimmicky. But then, before COVID, I also thought teaching a class using Zoom was a bit gimmicky. As the past two years of COVID has shown us, Zoom is a valuable tool which will have long-standing value in arbitration and is far from a gimmick. Indeed, since the pandemic began, many academic faculties, including mine, are looking to incorporate the benefits of what we learned during the pandemic in terms of remote teaching.
Likewise, the global arbitration community is looking at the various ways in which virtual and hybrid proceedings will be an ongoing part of arbitration. The same is true for courts. Many arbitrators and judges who, at first, were apprehensive about running a Zoom hearing of any kind are now stalwart converts.
But is the metaverse the right next step, or is it an unneeded one? Is participating in the metaverse and investing resources into virtual reality hearing rooms equivalent to the apocryphal story of NASA investing in a space pen?
If you’re unfamiliar with this myth, the story goes that NASA spent millions of dollars developing a pen that could write in space. In contrast, NASA’s Soviet counterpart had its cosmonauts use pencils. According to Ciara Curtin, who wrote about the myth in Scientific American, the story is not true, but it still offers an important lesson about worthwhile investments. Is the metaverse for dispute resolution simply a fancy space pen?
What is the metaverse?
Before exploring the advantages and disadvantages of running an arbitration proceeding in the metaverse, it’s helpful to define what the metaverse is.
Unfortunately, a clear and consistent definition seems elusive.
Nevertheless, everyone can agree that at its most basic, the metaverse is a series of computer-generated virtual spaces (in contrast to physical areas like courtrooms in courthouses in any given city). Crucially, users, wherever they are physically located, may enter these spaces and interact with other users who have also joined these virtual spaces.
Though beyond the scope of this piece, I have observed that the elusiveness of an apparent “metaverse” definition is explainable by how people define and subdefine the metaverse. Many describe the metaverse based not on what it is but more on what they can do within it. Hence the lack of a uniform definition.
What does a virtual reality hearing room look and feel like?
The first time I entered the virtual courtroom convinced me that virtual reality for hearings has much to offer. The hearing room we used for our virtual reality moot was designed (or is it built?) by a California company, ENGAGE VR. The immersion was more than I had expected.
The technology used plays with our senses beyond our audible and visual ones. The technology allows users to “feel” someone handing over a document or exhibit. With this “haptic” (relating to touch) technology, even the judges in our moot got to pick up a virtual gavel and strike a virtual sound block, which delivers the haptic and audible feedback one would feel doing it in the real world. Of course, Canadian judges don’t use gavels, but the point is made. Virtual reality goes beyond the visual and incorporates all the senses except smell. So far.
Even on the audible side, a virtual reality hearing room goes beyond a Zoom hearing room.
Unlike Zoom, virtual reality takes account of a room’s acoustics. For example, if someone is talking to you from one corner of the virtual room, you won’t hear them as well as you would if they were sitting next to you in the virtual room. In a virtual room, the closer you are to a person, the louder you hear their voice. It’s pretty remarkable to experience.
The most significant difference between virtual reality and Zoom is that when you're sitting in a virtual reality hearing room, you actually feel like you are in a hearing room. What’s more, the people you’re interacting with are in the same room as you. They are not simply square “tiles” on your video monitor, they are sitting next to you or sitting or standing a few feet from you. At least, that’s how you perceive them.
If I had to think of a simple comparison, Zoom is like peering through a window into a hearing room, whereas, with virtual reality, you are in the hearing room.
In my view, it is not hard to argue that a virtual hearing room is superior to a Zoom hearing room — at least insofar as the experience goes. I can list many reasons why the immersion is far more substantial in virtual reality than in Zoom, beginning with the simple point that staying focused in a virtual reality hearing room is more manageable. For example, it’s not so easy to check your e-mail by merely minimizing your Zoom window or glancing left or right on your monitor. In this way, it mimics a physical hearing room. This may or may not seem like an advantage to some.
This is the first of a three-part series. Read the second article: Arbitration in the metaverse: Access to justice; third article: Arbitration in the metaverse: You can’t go back again.
The authors invite readers to submit comments and questions to firstname.lastname@example.org, which they will address in a subsequent article.
The Honourable Barry Leon is an independent arbitrator and mediator with Arbitration Place, 33 Bedford Row Chambers (London) and Caribbean Arbitrators. He was presiding judge of BVI’s Commercial Court (2015-2018) and is a former chair of ICC Canada’s Arbitration Committee. Anthony Daimsis, FCIArb has over 20 years of experience in arbitration, sales law and contract law. He is a fellow of the Chartered Institute of Arbitrators and professor of law at the University of Ottawa’s Common Law section. He is a member of Littleton Chambers’ (London, UK) International Arbitration Group.
Photo credit / Kittiporn Kumpang ISTOCKPHOTO.COM
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