By Gary Kirk of Kirk Montoute LLP posted in Estate Law on Wednesday, February 7, 2018.
As a lawyer who not only practices in the areas of estates and family law but also acts as a Mediator/Arbitrator, this article may appear somewhat self-serving; however, the following reasons are worth considering.
1. The subject matter and disclosure of records associated with an arbitration can be kept confidential, whereas documents filed at the Court House are a matter of public record and can be accessed and copied by any interested citizen willing to pay a search and photocopy fee.
2. You can pick an Arbitrator with experience and expertise in the subject matter in dispute. There is a widely held but incorrect expectation that Judges know everything there is to know about every area of law. In fact, most Judges focussed on one or two areas of law prior to their appointment. Some may have practiced as in-house counsel or worked for the government. As judges they are required to adjudicate in multiple areas of law and typically rely on counsel to ensure they are presented with the most current state of the law. By choosing to resolve their dispute through arbitration, the parties can pick an Arbitrator who is knowledgeable and experienced in the relevant area of law.
3. You can still mediate the dispute within the context of the arbitration. The Arbitration Act (Alberta) specifically provides that the Arbitrator may, with the parties’ consent, use mediation, conciliation or similar techniques during the arbitration to encourage settlement of the matters in dispute, after which they may resume their role as Arbitrator. Often, the issues referred to arbitration are resolved entirely through mediation.
4. You can design the process leading to arbitration. Traditional court room litigation requires the parties to follow pre-trial steps as set out in the Rules of Court, e.g., filing an Affidavit of Records, production of records, questioning, completion of responses to Undertakings, further questioning, etc., before setting a trial date. In arbitration, the parties can limit or omit steps leading to arbitration. For example, the arbitration itself can be conducted on basis of Affidavits and written materials, on the basis of oral argument from lawyers only, or on the basis of a full-blown oral hearing with opening statements, evidence-in-chief, cross-examination and closing arguments.
5. Arbitration is generally cheaper than court room litigation. Although the parties have to pay their Arbitrator while the Judge’s salary is paid by the government, the opportunity to shorten and streamline the process typically results in a much lower cost of obtaining resolution.
6. You can select some of the issues in dispute to be arbitrated and have other items remain in the traditional litigation process. For example, the parties to a custody dispute can choose to have an Arbitrator resolve interim parenting disputes on an “as needed” basis pending a full trial.
7. You can have your matter determined and resolved faster. The bottleneck in the courts is bad and getting worse. There is competition from all areas of litigation for available court dates. Since the Jordan decision, setting and running criminal trials within the time specified by the SCC has become crucially important, as failure to comply with Jordan exposes the Crown to stay applications by defence counsel. Presently, it takes weeks to get a morning chambers date, and months to get a date for a special chambers hearing or trial. An arbitration can be set as soon as the parties and Arbitrator are able agree on the process and clear their schedule.
8. You can limit the grounds of appeal. The Arbitration Act places some built-in limits on grounds of appeal, e.g., a party may not appeal an arbitration Award on a question of law that the parties expressly referred to the Arbitrator for decision. Beyond that, the parties can agree ahead of time that there be no appeal or only limited bases of appeal. This reduces the likelihood of one party trying to get a “do-over” by way of appeal and promotes finality.