What is arbitration?
Arbitration is a private process where the parties follow an agreed process to present their evidence and legal arguments to a person hired by the parties to decide the matters in dispute.
The arbitration begins either as a result of an agreement in writing which requires that the parties submit disputes to arbitration (as opposed to the courts) or the parties agree in writing to submit their issue(s) to arbitration. The Arbitrator is then appointed by the parties. The parties can choose to appoint one Arbitrator or a panel of Arbitrators often called a “panel” or “tribunal”. The benefit to having more than one Arbitrator is to bring more expertise into the realm of the decision makers. For example, if your issue involves both legal and construction issues, you may wish to have a panel made up of both a lawyer and a construction expert. Typically, the Chair of the panel has the casting vote so having 3 Arbitrators on a panel is not necessarily required for tie-breaking. The Chair of the panel typically looks after administrative tasks associated with running the arbitration process. The Chair will address procedural objections and will often-times rule on the same without involving other members of the panel. Given that a fair hearing is a requirement, it is often times a good idea to have a lawyer as Arbitrator just to ensure that a fair hearing is delivered as experts in areas other than law may not have the background, knowledge or experience to run a fair hearing or to root through legal arguments and case law presented by the parties.
A preliminary hearing is typically held. At the preliminary hearing the parties in conjunction with the Arbitrator determine the process by which the arbitration will be governed including a decision as to whether the Rules of Evidence will apply or not. Time lines for delivery of documents, examination of documents, questioning and even whether any of these will occur are determined at the preliminary hearing. It is possible that an arbitration process involves nothing but a copy of a written agreement, signed by the parties where the parties are asking the Arbitrator to interpret the meaning of the words used in the agreement. The arbitration process could include the introduction of oral evidence or not; it is all up to the parties to determine in conjunction with the Arbitrator.
The hearing itself is much like any court proceeding except that the Rules of Evidence may or may not apply to the arbitral process. That having been said, at least the Rules of Natural Justice will apply to the arbitral process and in that respect, fairness will be applied by the Arbitrator in respect of the introduction of any evidence by the parties.
The Arbitrator’s decision is typically always in writing and provides reasons for the decision made. An Arbitrator’s decision is binding on the parties and can be filed with the Court just like any other Court Order and can be enforced in the same manner.
Why try Arbitration?
The short answer is that it is private, timely and typically cost effective. Arbitration is a private hearing; no one will even know that you are in dispute with anyone. Given that parties can agree on the process to be used for the arbitration, parties have a great deal of control over the cost and timing of the arbitration process. While court cases can take years to process, arbitrations rarely do.
Our lead Arbitrator is Michelle Simpson and she is a Chartered Arbitrator and is qualified to arbitrate anywhere in the world other than in countries outside Canada that require domestic residency of the Arbitrator. Michelle has been a lawyer in Alberta since 1982 and has practiced in many areas of the law including business (both Canadian and international); construction; insurance and workplace issues. Michelle has represented many clients before every level of Court in Canada (excluding the Federal Court) and including the Supreme Court of Canada and before several arbitral tribunals.