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A DIFFERENT
SET OF RULES
Feature
PARTIES INVOLVED IN COMMERCIAL DISPUTES ARE TURNING
MORE TO RESOLVING THEM THROUGH ALTERNATIVE DISPUTE
RESOLUTION, WRITES ZENA OLIJNYK
ALMOST THREE years into the COVID-19
pandemic, litigation lawyers say the increasing
willingness to use arbitration and other alter-
native dispute resolution mechanisms to settle
commercial disputes during the pandemic is
likely a permanent shi.
Rachael Saab, a senior associate at Torys
LLP, says that while the last few years have
seen an uptick in the use of ADR methods
like arbitration and mediation, "COVID-19
really catalyzed that trend." She adds that
parties on both sides of a dispute like being
able to resolve disputes within a set time-
line that corresponds better to commercial
reality. "e use of ADR generally produces
a resolution more quickly than using a court
system that can be backlogged."
Flexibility and efficiency
Michelle Awad, a general commercial litiga-
tion lawyer and senior partner with McInnes
Cooper's litigation and insurance group in
Halifax, says she saw arbitration and ADR
generally gaining ground as a preferred
method for dispute resolution even before
COVID-19. "However, the pandemic inten-
sified the potential advantages and made them
more obvious," she says, especially as tech-
nology for remote proceedings offered even
more flexibility.
Alison Archer, a commercial litigation
lawyer with Bennett Jones LLP in Calgary, says
the use of ADR is part of a trend she is seeing
of parties to a dispute looking at methods
of "resolving things efficiently and cost-
effectively outside the court system." Along
with arbitration, she points to mediation,
where parties try to settle a dispute themselves
with the help of a mediator, and the judicial
dispute resolution ( JDR) process available in
Alberta, which involves a confidential pre-trial
settlement conference led by a Court of King's
Bench judge.
ere's also new legislation in Alberta,
Archer says, that allows for a fast-track adju-
dication process for construction industry
dispute resolution. Says Archer: "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."
