Services  /  Arbitration

Arbitration

What is Arbitration?

Arbitration is a private dispute resolution process where an arbitrator – an impartial third party – hears the evidence of both parties and makes a binding decision. Arbitration can be voluntary, or it can be required under a contract or statute.

Selecting an Arbitrator

Arbitrators have training and expertise. The parties choose their arbitrator. If you cannot agree on the arbitrator, an application can be made to the Superior Court of Justice to appoint the arbitrator.

Comparing Mediation to Arbitration

Mediation
Arbitration
Negotiation with third party assistance. Adjudication by third party.
Focus on interests. Focus on legal rights and positions.
More informal process compared to arbitration. Informal process compared to court proceedings.
Mediator has no power to decide. Arbitrator is given power to decide. Binding decision.
Settlement only with party approval. Arbitrator listens to facts and evidence and renders an award.
Mediator helps the parties define and understand the issues and each side’s interests. Parties present case and testify under oath/affirmation.
Parties vent feelings, tell story, engage in creative problem solving. Cross-examination of witnesses
Conversation/discussion. Lawyers control party participation.
Parties are active participants.
Parties exchange information. Evidence is presented
Joint and private meetings between individual parties and their lawyers. No private communication with the arbitrator.
Outcome based on needs of parties. Decision based on facts, evidence, and law.
Outcome must be mutually satisfactory. Outcome is win/lose.
Enforceable as contract. Enforceable as Award.
Potential for relationships to be repaired/maintained. Unlikely that relationships will be repaired/maintained.

Mediation

  • Negotiation with third party assistance.
  • Focus on interests.
  • More informal process compared to arbitration.
  • Parties control the outcome.
  • Mediator has no power to decide.
  • Settlement only with party approval.
  • Mediator helps the parties define and understand the issues and each side’s interests.
  • Parties vent feelings, tell story, engage in creative problem solving.
  • Conversation/discussion.
  • Parties are active participants.
  • Parties exchange information.
  • Joint and private meetings between individual parties and their lawyers.
  • Outcome based on needs of parties.
  • Outcome must be mutually satisfactory.
  • Enforceable as contract.
  • Potential for relationships to be repaired/maintained.

Arbitration

  • Adjudication by third party.
  • Focus on legal rights and positions.
  • Informal process compared to court proceedings.
  • Arbitrator controls the outcome.
  • Arbitrator is given power to decide. Binding decision.
  • Arbitrator listens to facts and evidence and renders an award.
  • Parties present case and testify under oath/affirmation.
  • Cross-examination of witnesses
  • Lawyers control party participation.
  • Evidence is presented.
  • No private communication with the arbitrator.
  • Decision based on facts, evidence, and law.
  • Outcome is win/lose.
  • Enforceable as Award.
  • Unlikely that relationships will be repaired/maintained.

Arbitration Overview

In Ontario, the Arbitration Act, 1991, governs the scope and procedure of the arbitration. All the Provinces and Territories in Canada have a similar act.

Because it is very difficult to appeal, overturn or set aside an arbitration award, the arbitrator should be carefully selected by the parties based on their training, experience and often, subject matter expertise.

The parties define the extent of the dispute they need the arbitrator to decide in an Agreement to Arbitrate or Terms of Appointment of the Arbitrator. This gives power (jurisdiction) to the arbitrator to decide the dispute. An arbitrator must manage the arbitration process in a fair and impartial manner for all parties.

Arbitration is less formal than court-based litigation, but it is still an adversarial process with a winner and a loser. The outcome of the arbitration process may have a serious impact on parties and most people have legal representation in arbitration. Whether represented or not, the parties must properly prepare and present their case as the arbitrator cannot help them do so.

After the hearing, the arbitrator considers the evidence, law and parties’ submissions and writes an Award (Judgment) that decides the outcome of the process. Some awards simply announce the decision but in most, the arbitrator gives detailed reasons for their decision.

If the party bringing the arbitration is unsuccessful, the arbitrator will dismiss their claim. The losing party will usually end up paying a significant part, if not all, of the successful party’s legal and arbitration costs. If the losing party does not comply with the award, it can be enforced through an application to the Superior Court of Justice which will then convert the award into a court judgment.

Compared to court cases, arbitration can be completed more quickly, is less formal and can be less expensive than traditional litigation even with the arbitrator’s costs.

How does arbitration work?

Comparing Arbitration to Litigation

Arbitration
LItigation
Private Hearing Public Hearing
Legal rights and positions. Legal rights and positions.
Less formal process than litigation. Formal process.
Parties select and appoint arbitrtator. Judge is appointed by court.
Arbitrator controls the outcome. Judge controls the outcome.
Arbitrator is given power to decide outcome by the parties. Judge has power to decide.
Parties present case and may testify under oath/affirmation. Parties present case and testify under oath/affirmation.
Cross-examination of witnesses. Cross-examination of witnesses.
Lawyers and arbitrator manage party participation. Lawyers and judge control party participation.
Evidence presented. Evidence presented.
Less strict rules of evidence. Strict rules of evidence.
Parties can decide on process and rules. No private communication with the judge.
No private communication with the arbitrator. Judge listens to facts and evidence and renders judgment.
Arbitrator listens to facts and evidence and renders an award. Judge listens to facts and evidence and renders judgment.
Enforceable Outcome is win/lose. (Award) Enforceable Outcome is win/lose. (Judgment)
Parties decide on whether an appeal is available. Rules of Court decide on whether an appeal is available.
Can be very short time to hearing (months). Must wait for hearing to be scheduled by court (years).
Costs include legal and arbitrator fees and venue. Costs include legal fees.

Arbitration

  • Private hearing.
  • Legal rights and positions.
  • Less formal process than litigation.
  • Parties select and appoint arbitrator.
  • Arbitrator controls the outcome.
  • Arbitrator is given power to decide outcome by the parties.
  • Parties present case and may testify under oath/affirmation.
  • Cross-examination of witnesses.
  • Lawyers and arbitrator manage party participation.
  • Evidence presented.
  • Less strict rules of evidence.
  • Parties can decide on process and rules.
  • No private communication with the arbitrator.
  • Arbitrator listens to facts and evidence and renders an award.
  • Enforceable Outcome is win/lose. (Award)
  • Parties decide on whether an appeal is available
  • Can be very short time to hearing (months)
  • Costs include legal and arbitrator fees and venue.

Litigation

  • Public hearing.
  • Legal rights and positions.
  • Formal process.
  • Judge is appointed by court.
  • Judge controls the outcome.
  • Judge has power to decide.
  • Parties present case and testify under oath/affirmation.
  • Cross-examination of witnesses.
  • Lawyers and judge control party participation.
  • Evidence presented.
  • Strict rules of evidence.
  • Rules of Court.
  • No private communication with the judge.
  • Judge listens to facts and evidence and renders judgment.
  • Enforceable Outcome is win/lose. (Judgment).
  • Rules of Court decide on whether an appeal is available.
  • Must wait for hearing to be scheduled by court (years).
  • Costs include legal fees.

We Provide ADR Training

w

Med-Arb Training

Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.

v

Mediation Training

Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.

Arbitration Training

Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.

Online Dispute Resolution Training

Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.

Are you looking for a med-arbitrator? 
Do you need virtual arbitration services?