Canadian Lawyer

July 2021

The most widely read magazine for Canadian lawyers

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38 BUSINESS STRATEGY TOP 10 ARBITRATION CHAMBERS SPECIAL REPORT ADVANTAGES AND DISADVANTAGES OF ARBITRATION gence, big data, and the Internet of Things," he says. "Rather than viewing these trends as a threat, we must take advantage of the bene- fits of technological evolution. It is capable of entirely transforming the landscape of dispute resolution." Another trend is the feeling in the judi- cial community that arbitration has a posi- tive impact on the courts. Marshall says that in jurisdictions where court schedules are clogged, "we note a recognition on the part of judges of the legitimate role of arbitration in taking a burden off the courts." He adds the increasing number of unsuccessful chal- lenges to arbitration awards reflect a "greater deference to arbitrators and the arbitration process on the part of judges." Barry Penner, Managing director at Vancouver International Arbitration Centre, says lawyers are "increasingly resorting to arbitration, as the benefits outweigh concerns over unfamiliarity with the process. "Arbitration better meets the needs of disputing parties when it comes to efficiency, costs and control of process, including choice of decision maker." All hands on deck to clear backlog Torrie sees an "all hands on deck" response needed once the pandemic is under control and more services return to normal. "Public health restrictions on the oper- ations of the courts during the pandemic have created tremendous back logs," he says. Mediators and arbitrators will need to join in with other stakeholders to tackle this chal- lenge, he says, adding "innovation, imagina- tion and flexibility will be the watch words." But Neeson says that for all the advan- tages COVID-19 has shown us about using technology to improve the arbitra- tion process, she thinks there will still be a desire for, or at least nostalgia for, the "old days." Parties in the arbitration process met at neutral premises like her office for what often turned out to be a "day-long event." "There's the food, there's the coming together in big face-to-face meetings, then there are break-out sessions in conference rooms to discuss strategy, and depending on the arbitrator, the process can to long into the night," she says. "There will be some who will still want that, along with the innova- tions we've seen used recently." Source: Westlaw/Thomson Reuters The advantages and disadvantages of arbitration compared to court litigation depend on the dispute and strategic considerations of the parties • In an arbitration, the parties can choose their decision maker(s), whereas in litigation the parties are assigned a judge. • The production of documents in arbitration is typically narrow, whereas litigation in Canada has a broad discovery process. • Arbitrations are often private and confidential, whereas court litigation is public. • Arbitration allows for more control over the legal procedure (timelines, submissions, exchange of evidence, meetings and locations). • An arbitration award can only be challenged on very limited grounds, whereas final court decisions can be appealed on a question of law. "We note a recognition on the part of judges of the legitimate role of arbitration in taking a burden off the courts." Jack Marshall, Western Arbitration Chambers

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