And if they can’t even agree on that process, they can go to the court who will appoint an arbitrator, or panel of arbitrators, or they can go to an organisation, such as the __Arbitration and Mediation Society, who will appoint an arbitrator for them. The arbitrator of course has to be neutral and impartial.

Beauty of private court, or arbitration, is that it is private. There are no public filings, there are no public hearings, and there is no public decision at the end of it. It’s simply a dispute-resolution mechanism between the parties, where someone makes a decision for them, and that outcome is binding but always private.
In addition to private, their privacy, there are a number of other advantages to arbitration. One is, I’m going to mention, is that you can choose your arbitrator, so you can choose an arbitrator with some subject-matter expertise – if this is a construction matter, you might choose an arbitrator who has some construction background knowledge, and so on. You can choose, as a party, or indeed influence - if you can’t actually choose it - the process that you’re going to follow, because after all, the reason is, the party to the dispute, and they will have their input as well, but you can work with your arbitrator on what that process might be. It might include its inspections of property, or the calling of expert witnesses, or even the retention of an expert witness by the arbitrator to help him or her underastand what’s being talked about. You can have examinations for discovery just like you would in a formal court proceeding, but again, they are private.
You can decide where the hearing is going to be. It usually is in somebody’s board room. So it’s much less formal a set up than a court room and makes parties more comfortable with one another as they go along.
The result is, you get a decision from your arbitrator or arbitrators, and that decision is binding, that’s final, and it can be filed as an order of the court and enforced just like an order of the court. Usually you get that decision much more quickly than you do from a judge, so there is a real speed advantage. A lawyer who recently did his first arbitration as councel before me said that one of the things that he thought was most magnificent about the arbitration process was access to the decision maker. If the parties had a procederal dispute along the way, they could simply send an e-mail to me saying, “We need a short hearing to resolve this dispute”. We’d organise a conference to call a week later, and that part of the dispute would be done. If you were doing that in a court process, it might take you 2, 3, 4 weeks to get that done, with formal filings of paper and so on.
The rules of evidence are much more relaxed than in a court room as well, during an arbitration. So, hearsay is admissable. Of course, the arbitrator has to weigh that evidence and say, you know, what credibility it has, what weight it ought to be given in the process.
In terms of deciding the process, there are some model rules available, that the AD(?Bar)R Institute of Canada has, model rules that anybody can use and adopt, and indeed they include an expedited process that shortens the whole time for him, so parties can get the arbitration decision much more quickly than otherwise, and certainly much more quickly than at court proceeding.
Arbitrators also have jurisdiction to award costs, so the entire cost of the proceedings could, if the arbitrator so decides, be awarded to one party as opposed to the other or against the other, or they could be split, as the arbitrator has wide jurisdiction.
My recommendation is that you include an arbitration clause in all contracts that says: “If we have a dispute arising out of this contract, we will arbitrate it.” You should go further, in my view, and adopt some rules so that there is a process for how there are the arbitrators or how the arbitartors will be appointed.
There’s a range of options for where you could use arbitration. In small disputes you’d want to have a very quick and duly process where you appoint an arbitrator, you talk to them, say: ”This is our problem”, arbitrator makes a decision. There can be much, much greater disputes with high money value or long-term implicaions where you would have a much more formal process. You might have examinations for discovery, you would have a formal document disclosure process and a lengthy hearing. And of course the evidence would be under truth (под залогом), as would in all cases.
Arbitration has no jurisdiction, or arbitrators have no jurisdiction in divorce matters, custody, maintenance, criminal matters, or in wills and estates matters. Those are reserved exclusively for the court.
So I would suggest putting an arbitration clause in! 

When you are looking for an arbitrator, look for a chartered arbitrator because they’ve met mimimum standards set by the ADR Insitute of Canada and they have insurance.

Last modified: Saturday, 19 October 2013, 5:08 PM