For more than a year, prominent Canadian litigators writing for this publication and elsewhere have suggested — wisely — that parties with cases lingering in the courts because of court delays, particularly delays in securing trial dates, should consider moving to arbitration.
For more than a year, prominent Canadian litigators writing for this publication and elsewhere have suggested — wisely — that parties with cases lingering in the courts because of court delays, particularly delays in securing trial dates, should consider moving to arbitration.
They point to the volume of cases and the diversion of judicial resources to meet strict time limits imposed on courts by the Supreme Court of Canada in R. v. Jordan.
As there is little indication that the suggestion has gained traction, one might ask whether this is an idea that is great in theory but unachievable in practice.
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The answer is that it is a terrific suggestion and it is easily achievable. The critical challenge is how to get parties stalled in the courts to consider moving to arbitration.
Usually, a party locked in the heat of a contentious dispute will recoil at a suggestion from the other side to consider moving to arbitration, fearing some tactical manoeuvre.
I believe it is possible to get parties embroiled in litigation to consider moving to arbitration, but they need independent assistance.
An effective and efficient court mechanism is needed to cause parties to consider seriously the advantages and disadvantage, work out how their arbitration would work and to settle the specifics of moving.
The answer likely lies in “court-facilitated arbitration.”
Court-facilitated arbitration
Some jurisdictions have what they call court-annexed arbitration. Court-facilitated arbitration is a more accurate term.
Unlike court-annexed mediation, where courts encourage or require mediation at some stage, engaging in arbitration is voluntary. However, the process to get parties to explore moving to arbitration need not be entirely voluntary.
An arbitration and how it is conducted is founded on party agreement. Court-facilitated arbitration would not offend party autonomy or any fundamental aspects of arbitration. Arbitration would occur only if parties agree.
Implementing a process for courts to assist parties to consider moving to arbitration is easy — use case management conferences.
An experienced judge who understands arbitration, has strong mediation skills and a commitment to make court-facilitated arbitration work would conduct the conference.
Before the conference, the judge would become familiar with the dispute, its factual and legal issues and its procedural situation.
Parties should be required to attend so that there is a greater opportunity for parties’ true interests to surface.
When the parties are receptive to moving, the judge would assist them and counsel would develop a protocol for the move.
If parties choose or like litigation because of certain of its features, as compared to arbitration, those court litigation features could be preserved in arbitration.
Court litigation features could be the default position for the arbitration, with differences from arbitration’s ordinary features being subject to discussion.
Guided by an experienced judge who understands arbitration’s features and benefits, parties may elect to apply those features to their dispute.
Topics that would be considered and agreed in the conference would include:
Privacy/confidentiality: If desired, the arbitration could be open, just as the court proceedings would have been.
Judgment versus award: If parties want a court judgment, it may be possible for the arbitration to be a reference.
Or parties may prefer an arbitral award, which would be more readily enforceable worldwide under the New York Convention. Additionally, a mechanism for the award to “become” a judgment could be built into the protocol.
Precedent: If parties want a publicly available precedent — for their own purposes or to help develop the law — the protocol could provide for it. Certainly, the reference mechanism could achieve this. Other mechanisms might be possible.
Procedural and evidentiary rules: If parties are wedded to using court procedural and evidentiary rules, they would be able to do so in the arbitration. Or the case management judge might leave parties appreciating the benefits of a more customized and efficient approach.
Costs: The case’s costs through the case management conference could be left to the arbitral tribunal. Further, parties could agree that the tribunal will apply the court’s approach to costs (including settlement offers).
Arbitral tribunal: Parties would decide whether to engage one or three arbitrators and a process to select the tribunal. Commonly used processes to appoint an arbitral tribunal would be considered, including that the judge serve as “appointing authority” to select the tribunal in the absence of agreement.
Appeals: If parties wish to preserve appeal rights as they would exist following a trial, the reference mechanism could achieve that objective. Or parties could choose an appeal by way of arbitration. Rules exist for such appeals, including the Arbitration Place Arbitration Appeal and Review Rules.
Other topics. Nothing would preclude the case management conference considering other topics, including the use of mediation and other forms of ADR, to take place before arbitration, running either concurrently or sequentially.
Begin pilot projects now!
Court-facilitated arbitration could be implemented under most existing court rules and practices, with minimal disruption to existing ways of doing things.
The main cost of implementation would be a few hours of judicial time devoted to cases that otherwise will have lengthy waits for trial, and ultimately consume many days, if not weeks, of court time and resources.
To succeed, court-facilitated arbitration will need appropriate judicial awareness and commitment. Also, it will need litigation lawyers to seriously consider the advantages to their clients.
Why not begin pilot projects now?
Barry Leon is presiding Commercial Court judge in the British Virgin Islands, as well as an arbitrator and mediator.
