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.
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
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
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
believe it is possible to get parties embroiled in litigation to consider
moving to arbitration, but they need
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.
answer likely lies in “court-facilitated arbitration.”
jurisdictions have what they call court-annexed arbitration. Court-facilitated
arbitration is a more accurate term.
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.
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.
a process for courts to assist parties to consider moving to arbitration is
easy — use case management conferences.
To begin, a court identifies cases in which party interest in arbitration may
exist. Then the parties and counsel are invited to attend a case-management
conference to consider moving.
experienced judge who understands arbitration, has strong mediation skills and
a commitment to make court-facilitated arbitration work would conduct the conference.
the conference, the judge would become familiar with the dispute, its factual
and legal issues and its procedural situation.
should be required to attend so that there is a greater opportunity for
parties’ true interests to surface.
the parties are receptive to moving, the judge would assist them and counsel
would develop a protocol for the move.
parties choose or like litigation because of certain of its features, as
compared to arbitration, those court litigation features could be preserved in
litigation features could be the default position for the arbitration, with
differences from arbitration’s ordinary features being subject to discussion.
by an experienced judge who understands arbitration’s features and benefits,
parties may elect to apply those features to their dispute.
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
Judgment versus award: If parties want a court judgment, it
may be possible for the arbitration to be a reference.
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.
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.
pilot projects now!
arbitration could be implemented under most existing court rules and practices,
with minimal disruption to existing ways of doing things.
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.
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.
not begin pilot projects now?
Barry Leon is presiding Commercial Court
judge in the British Virgin Islands, as well as an arbitrator and mediator.