With businesses facing mounting challenges during the coronavirus crisis, finding a fast and less expensive way to resolve commercial disputes has become a pressing practical priority.
My experience as a commercial litigation counsel has led me to recommend careful consideration of proceeding by way of mediation/arbitration (“Med/Arb”).
What is Med/Arb? It is not infrequent that court cases are mediated (sometimes a compulsory requirement as, for example in estate litigation and cases on the Toronto Commercial List) prior to trial in an effort to obtain a resolution without the time, effort and expense that trial entails. When this traditional mediation effort is undertaken, the Mediator is not the person who ultimately adjudicates the case, but rather recommends a resolution which the parties, in consultation with their counsel, can either accept or reject.
What if the Mediator were also given the power, following a failed mediation, to carry on and actually adjudicate the case? If such authority in granted, the Mediator becomes the Arbitrator, and the process becomes a Med/Arb.
There can be several advantages to such an arrangement.
First, it is very efficient, as the preparation for the Mediation also serves as the preparation for the Arbitration.
Second, the person conducting the Med/Arb has a lot of persuasive authority, when acting as Mediator, to get the matter resolved by agreement, since in the event that no mediated resolution is achieved, that same person will be the Arbitrator and decide it the way he or she thinks best. Parties must therefore consider very carefully the proposed mediated solution that is put forward.
Third, the parties get to choose the particular person they want to conduct the Med/Arb. In conjunction with their counsel, parties can choose a former Judge, or an experienced practising lawyer in whom they have utmost confidence to deal with their dispute fairly and professionally on the basis of the evidence presented.
Fourth, delays unfortunately inherent in court proceedings can be avoided, and procedure can be tailored and streamlined to suit the case at hand, and to take into account specialized knowledge in the business area where the dispute has arisen, including choosing a person to preside over the Med/Arb who already has such knowledge and does not need to hear expert witnesses in order to obtain it.
Fifth, and this is particularly important with the courts closed during the coronavirus crisis and struggling to conduct proceedings remotely, the Med/Arb process can generally be compressed into a format which does not require in person attendances, so that valuable time is not lost.
Of course, key to the success of any Med/Arb is the careful selection of the person to preside over it. That person has tremendous power and must at all times act fairly and deal with the case on the facts presented. Fortunately in this important regard, experienced commercial counsel generally do not have difficulty finding such candidates and recommending them to their clients.
Those interested in discussing Med/Arb in more detail can contact me as follows:
Direct line: 416-734-0414
Don Jack, Senior Litigation Counsel, Pace Law.