Canadian Lawyer

July 2021

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 37 METHODOLOGY Earlier this year, Canadian Lawyer asked lawyers, in-house counsel, and clients from across Canada to vote on the arbitration chambers. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included on the list. To be considered in the vote, firms were required to have at least 80 per cent of their business come from arbitration. The final rankings were determined through a points system, in which firms were rewarded on a sliding scale for the number of first to 10th-place votes received. The quantitative results are combined with feedback from respected senior members of the bar and in-house counsel when applicable. An early pivot to virtual hearings Early on in the pandemic, counsel and their clients quickly pivoted to using video confer- encing. And though it is unclear how exten- sive use will be post-pandemic, arbitrators say "all indications are it will be a permanent feature of practice." Kim Neeson, with Neeson Arbitration Chambers in Toronto, envisions a world where more proceedings will use a hybrid model of in-person and virtual arbitration and mediation, as people get vaccinated and others choose not to. As well, she says, "the way we look at travel for arbitration has changed." How much and how quickly the arbitration process will change depends on the dispute's nature and the participants' views and comfort level with the technology involved. "But I think that virtual hearings are here to stay for at least a percentage of arbitrations." Another Toronto-based arbitrator, Tanya Goldenberg at ADR Chambers, says there will be a pivot towards more virtual hearings and less done in person. But there will always be a need, and desire, for closer contact in a post-pandemic world. Already she has had discussions where parties suggest that it would likely be by Zoom if the matter goes forward during the summer. "However, if it is October, and everybody has had both doses of their vaccine, we could potentially do it in person." The increased use of document sharing on cloud platforms has also substantially impacted arbitration, Goldenberg adds. She points to the ability to record most virtual proceedings and share screens to point to specific materials. There is also the concern about who exactly is in the room during online hear- ings. Goldenberg says most arbitrators have witnesses take an oath that includes swearing that no one else in the room and that they will not using a computer for other purposes during the hearing. The possibility of arbitration being done chiefly through virtual means could also have an impact on the dynamic of selection counsel and experts for settling matters by arbitration, says Marshall, "as they can be chosen without regard to where they are based." Travel and accommodation expenses are not as much of a factor, he adds, and "so the expense of an arbitration ought to be reduced as it is unnecessary to book facilities to host the arbitration, and travel times for those participating are essentially zero." This model of using arbitration should lead to an increase in its use to resolve commercial disputes. Incentive to arbitrate smaller disputes Michel Jeanniot at the Canadian Arbitration Centre in Montreal says the reduced costs of virtual arbitration mean some parties might choose that for cases involving smaller dollar amounts. As the cost factors relating to arbitration go down, Jeanniot says, there is an increase in the "smaller ticket" matters, and ultimately it is a good thing to "use the private resource of arbitration to resolve disputes." Jeanniot notes parties to a dispute have long turned to arbitration as a means of achieving a resolution more quickly than the court system permits. However, economic pressures are pushing clients to demand ever-faster results, and "even traditional arbitral procedures can seem lengthy and cumbersome." He adds that new and evolving tools for resolving disputes quickly and efficiently including expedited procedures, summary dismissal, and emergency procedures could "lead to an increase in the proportion of high-value arbitrations through the intro- duction of case management technologies." Torrie in Toronto agrees that "costs and systemic delays are motivating more litigants to try and settle their disputes much earlier." He says he sees more mediations sched- uled before discoveries, and even before the exchange of pleadings. Jeanniot says the arbitration community must embrace technological developments to become faster and more efficient. "This includes the shift towards artificial intelli- "Costs and systemic delays are motivating more litigants to try and settle their disputes much earlier." Paul Torrie, Global Resolutions Inc.

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