Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1484268
18 www.lexpert.ca Feature "There are some- times cases where both sides don't want anything in the public realm, so they'll agree to arbitrate" Lawrence Thacker LENCZNER SLAGHT LLP "It's all just a move generally toward trying to find ways to resolve disputes without necessarily having to go through a lengthy litigation process" Alison Archer BENNETT JONES LLP evidence of both sides in front of an arbitrator. Lawyers also point to confidentiality being an essential factor in why parties in a commer- cial dispute might choose ADR. "ere are sometimes cases where both sides don't want anything in the public realm, so they'll agree to arbitrate," says Lawrence acker, a partner at Lenczner Slaght LLP in Toronto. A bespoke way of settling disputes Saab points out that using ADR allows the parties to design a bespoke dispute resolu- tion process that "responds to the realities of the parties and the issues involved." It is also possible to include a method for choosing a particular type of mediator or arbitrator and not necessarily rely on the court system to assign a judge who may or may not be familiar with the disputed issues. "Judges on the commercial list in Ontario are great generalists and can get up to speed on very complicated issues," says Saab. "However, if you're dealing with a particularly specialized industry, there might be some advantages to having a decision maker who already under- stands the issues and sector," Saab says. Hugh Meighen, an international arbitra- tion lawyer and partner at Borden Ladner Gervais LLP in Toronto, says it is understand- able why parties to a dispute may have chosen arbitration during the pandemic. "ere are now disputes related to COVID-19 from 2020 and 2021 that were not resolvable through the courts because of the scale or dimensions of the claim – now they are in full swing in dispute resolution," says Meighen. "at's driving a lot of litigation and ADR right now, and I would expect that to continue for at least another year or so." Meighen adds that the construction industry and firms dealing with infrastructure have been one of the leading areas for different forms of alternative dispute resolution, espe- cially arbitration. "You see more arbitration clauses written into standard contracts for construction projects." However, he adds, arbitration appears to be spreading beyond construction and infrastructure, including cross-border transactions. When there is a cross-border element, Meighen says, parties who are quarrelling "don't necessarily want to end up in the other party's legal jurisdiction, so arbitration under an agreed-upon set of procedures is seen as an answer." Is mandatory arbitration a dealbreaker? acker agrees there appears to be a general increase in the trend of including mandatory arbitration in commercial agreements in contracts. But when a contract is drawn up and signed, "nobody expects to be the party who slows things down [by using the courts]. ey all expect to be the one who wants a quick resolution." However, acker says, in his experience, when a dispute arises, and there is no mandatory arbitration baked into the original ARBITRATION Advantages Disdvantages Parties create own process Success largely dependent on arbitrator Arbitrator can be selected on basis of substantive knowledge Poor co-operation and process design could affect cost and time Confidential proceedings Right of appeal limited Final decision binding Confidentiality not suitable for some disputes Proceedings may be shorter, less expensive Outcome uncertain in binding arbitration