Progressing to Settlement after Mediation Concludes

By Bill Duke

When a mediation concludes either without resolution or with a partial resolution, it can leave the disputing parties rather in a state of limbo. What should the parties then do to continue to progress toward a resolution? What should the mediator do to ensure that the momentum gained during mediation is not lost? Should the parties seek a proposal from the mediator?

By Rahat Godil, FCIArb and Justin Manoryk

The Supreme Court of Canada (“SCC”) recently held that a mandatory arbitration clause was unconscionable.  The clause was in a standard form contract, mandated disputes to be resolved through International Chamber of Commerce (“ICC”) rules, required claimants to pay a US$14,500 commencement fee, and specified that the place of arbitration was the Netherlands. The majority of the SCC restated the test for unconscionability, and recognized a new exception to the “competence-competence” principle. The decision significantly impacts use of arbitration clauses in standard form contracts between parties of unequal bargaining power, such as those commonly used by participants in the gig economy.

By Rebecca Shoom

One of the most frequently cited benefits of commercial arbitration is that it offers parties the ability to resolve their disputes out of court, in a private and confidential manner. That benefit may be lost when a party to the arbitration seeks to exercise rights that involve the courts. This article addresses recourse to court provided in provincial arbitration statutes, and offers options for mitigating the risk that a confidential arbitration becomes public in an appeal or application.

By Gordon L. Tarnowsky Q.C. and Rachel Howie

The standard of review for appeals from commercial arbitration awards – where permitted in Canada – has been settled for some time, including by judgments of the Supreme Court of Canada. With its judgment in Canada (Minister of Citizenship and Immigration) v Vavilov^[1] (“Vavilov”) dealing with  “statutory appeals”, the Court, whether intentionally or unintentionally, may have unsettled the law governing appeals of commercial arbitration awards.

[1] 2019 SCC 65. [Vavilov]

By Tom Wagner

As a result of the COVID-19 pandemic and global economic crash, mediations conducted remotely through videoconferencing software have become much more popular. The success of remote mediations depends on the consideration of logistical and technological issues ahead of time so that the parties can focus on the substantive issues at hand during the mediation itself. This article provides a summary of the key considerations for the mediator and the parties to the mediation to address in order to conduct a successful remote mediation.

By J. Brian Casey and Grant Hanessian

What are the legal issues in Canada and the U.S. when one party to an ad hoc arbitration requests a hearing by way of videoconferencing, or the tribunal advises the parties it wishes to hold the hearing by way of videoconferencing, and one party objects?

By Ludmila B. Herbst, QC and Kurtis Harms

Non-party participation in commercial arbitration hearings is generally limited, but matters may change when an arbitral award is challenged in court. In some circumstances, the court hearing the challenge may grant a non-party’s application to intervene – not simply based on the general principles that may prompt intervention in those rare cases that reach the Supreme Court of Canada, but based on facts and circumstances related to the specific challenge itself. The courts in Ontario and Prince Edward Island have recently taken different approaches to intervener standing, highlighting factors that counsel who contemplate seeking intervener standing for their clients will need to consider.

By Julie G. Hopkins, FCIArb

Under a number of domestic Arbitration Acts, there is a lack of clarity in the test used by Courts of Appeal when deciding whether to grant permission to appeal a decision by a superior court that determined an appeal of an arbitral award. Often, Courts of Appeal apply the common law test for leave to appeal to an appeal court at first instance. The author suggests that the test for permission to appeal could be clarified if it were based instead on the policy and statutory purpose behind a “second level of appeal”.

By Jack R. Maslen and Shereen Khalfan

A key feature of international commercial arbitration is the selection of the “seat”. The importance of carefully selecting the seat, particularly in terms of challenges to the award, is highlighted in the recent decision of the Ontario Superior Court of Justice in The Russia Federation v Luxtona Limited (“Luxtona”). Luxtona is a novel and significant case for commercial arbitration law and practice in Canada.

By Colm Brannigan, FCIArb, C.Med, C.Arb and Conor Brannigan, Q.Med

Med-Arb, which has a long history of use in labour and family law disputes, is finally receiving the attention it deserves in Canada as an innovative, well-designed stand-alone process and not just a cobbled together mash-up of mediation and arbitration.  One of the major critiques of med-arb has been a significant unease over one neutral acting as both mediator and arbitrator in the same dispute. The alternative of using two separate neutrals significantly increases costs. In this article, an alternative model is presented using one neutral as med-arbitrator but providing an opt-out provision at the end of the mediation phase.

By Harvey J. Kirsh, B.A, LL.B, LL.M, C.S, C.Arb

The cost of a chess clock generally ranges from $20 to $300, and could be precision analog or digital; mechanical or quartz; wood, plastic or steel; and wind-up or battery-operated.  They are typically used to facilitate chess play; but, as indicated in this article, they can also be employed as a time management technique, along with time limits and a few firm rules, to reduce the cost and length of an arbitration proceeding.

By Francis Rouleau

In the Province of Quebec, it is well settled law that an arbitration clause in a shareholder agreement could not interfere with the exclusive jurisdiction of the Superior Court of Quebec to force liquidation proceedings, but a recent change in statutes has now caused the Superior Court of Quebec to revise its approach and consider whether liquidation proceedings can be subject to an agreed mediation process.

By Jeffrey D. Vallis, Q.C, FCIArb and Shereen Khalfan

Whether a party can obtain leave to appeal is largely dependent on the basis for the appeal. Although the Arbitration Acts in certain provinces allow for an appeal, the application of the appeal provision has produced unpredictable outcomes. Many provinces, such as Saskatchewan, have adopted provisions to allow parties to a contract some certainty by permitting them to contract out of appeals on issues of fact, law, and mixed fact or law. However, other provinces, such as Alberta, have not. Until legislators take notice of the unpredictability caused by the lack of uniformity, parties in Alberta that include binding arbitration terms in their contracts will continue to face possible appeals to the courts.

In Defense of Tiered Dispute Resolution Clauses

By Mary E. Comeau

Tiered dispute resolution clauses are often maligned as causing delay and not being effective. However, though no formal analysis is available, the experience of some commercial litigators and business managers would suggest that, when carefully drafted, these clauses are a valuable tool to battle some of the human issues that come into play in resolving complex disputes.

Expedited Arbitrations: Comparison of the Various Institutions’ Rules

By Alexandra Mitretodis & Brock Euper

In the context of lower value claims or less complex disputes, expedited or fast track arbitrations provide a faster and more inexpensive way to resolve disputes. Expedited arbitrations can eliminate the need for an oral hearing, mandate shorter submissions, and implement more efficient procedures. They are also usually decided by a sole arbitrator, which can save costs and avoid delays. Further, expedited arbitrations can result in an award within 3 to 6 months from the start of the proceedings (as opposed to 12 to 18 months for many traditional arbitrations).

By Hon. Clifton D. O’Brien, Q.C.

When civil litigation is agreed by the parties to be transitioned to arbitration, counsel have both an opportunity and an obligation to carefully canvass the procedural rules to be selected to govern the arbitral proceedings. Working together with the tribunal, the parties and their counsel are in a position to tailor the procedural rules to best achieve a fair and efficient determination of the issues.

A View from the Nose-Bleeds

By Weston Rudd & Brock Carscallen

Compromise is necessary when settling disputes, but from the perspective of in-house counsel, when it comes to arbitration, the focus of the arbitrator should be on making fair and final procedural decisions. By the time the parties reach arbitration, they have already made extensive efforts to settle and their interests are best served by a firm but fair decision-maker who will follow the dispute resolution agreement and who will bring closure to the dispute. 

Overlapping Arbitration and Litigation: When Can the Court Step In

By Andrew Sunter & Susan Fader

Courts have the power to enforce arbitration agreements and stay litigation in favour of arbitration. But can the reverse be true—can an arbitration be stayed in favour of litigation to avoid a multiplicity of proceedings? This article studies Canadian Natural Resources Limited v Flatiron Constructors Canada Limited, 2018 ABQB 613, where the Court stayed an arbitration and allowed overlapping litigation to proceed first. We explore the risks associated with parallel litigation and arbitration with overlapping issues, including how the Court deals with subrogated claims, litigants who are strangers to arbitration agreements, and concerns and risks inherent in overlapping proceedings.

Two Hats, or Not Two Hats?

By Lauren Tomasich, Eric Morgan & Sarah Firestone

Working with an arbitrator who also acts as the mediator can present unique challenges but also benefits. This article considers how arbitration legislation applies to this issue and explores the pros and cons of having the same person act as both mediator and arbitrator.

The Independent Arbitrator: Challenging Arbitrator Independence

By Earl A. Cherniak, Q.C., LL.B, FCIArb & Rebecca Shoom

An arbitrator must be independent, so that the parties to a dispute have confidence in the adjudication process. When disputes arise as to the independence of a proposed nominee, the parties must find a way to resolve them so that the arbitration can proceed efficiently. This article reviews an arbitrator’s disclosure obligations, and the avenues available where a party wants to challenge a nominee’s independence, or where the parties cannot agree on an arbitrator. Practical examples of how such disputes have been resolved in prior arbitrations are included to demonstrate the creative solutions that are available.

Arbitral Claims and Insolvency Proceedings

By David Gruber, FCIArb, IIC

A recent decision of the Ontario Superior Court in the Companies’ Creditors Arrangement Act (“CCAA”) proceedings of Sears Canada Inc. highlights an intersection between party autonomy principles established under the law of arbitration and insolvency law. At issue was whether the price under an option should be determined by an arbitrator appointed under Ontario’s arbitration legislation or whether instead it should be determined by a “claims officer” appointed by court order in the CCAA proceedings.

References and Construction Claims

By Harvey J. Kirsh, B.A. (Tor.), LL.B. (Osg.), LL.M. (Harv.), C.Arb., C.S.

Many government infrastructure projects in Canada now call for the appointment of a “Referee” and for the use of an alternative dispute resolution process called a “Reference” for the relatively informal resolution of disagreements, claims, and disputes arising out of the project agreement. It has worked effectively in Ontario, Nunavut and elsewhere.

The Legacy of HOOPP – The Perils of Limitation Periods in Arbitration

By Dalton W. McGrath, Q.C., FCIArb & Michael C. O’Brien

It has been approximately five years since the Alberta Court of Appeal in AG Clark Holdings Ltd v HOOPP Realty Inc released its decision confirming that when parties have agreed to a mandatory arbitration clause to resolve their disputes, filing a Statement of Claim with the courts within the applicable limitation will not preserve the claim. Since its release, the decision has been cited in dozens of cases in Alberta and appears to be gaining traction outside of Alberta. Counsel are commended to read that decision (and this article) to avoid missing important limitation dates.

New ICSID Rules-An Update

By Sara Nadeau-Séguin, LL.B., LL.M.

On 19 August 2019, the International Centre for the Settlement of Investment Disputes (ICSID) released a third working paper on proposed changes to the arbitration rules between States and foreign investors, following consultation with states and the public over the past year. This most recent proposal is reviewed in this article.

Harassment Investigation: Keeping it Fair

By Steven C. Gaon, C.Med

Is an accusation of harassment equivalent to culpability? This article looks at the significant increase in harassment complaints coinciding with the Me Too Movement, as many ADR professionals take on the role of harassment investigators. The author examines the need to encourage victims of sexual and other forms of harassment to come forward against the need for…

Use of Experts in Arbitration: An Arbitrator’s Perspective

By Jack Marshall, QC

Once the legal threshold has been met for admitting expert evidence, care must be taken by counsel in fully briefing the expert witness. It is critical that the expert give impartial and unbiased testimony and not simply be a part of the advocacy team. The expert must remember that while he or she is an expert, the tribunal in many cases is not. Accordingly the witness must speak clearly and slowly enough that the tribunal is able to follow what might be highly technical evidence. Always remember that it is the tribunal that renders the Award and the expert must ensure the tribunal has followed the evidence…

Effective Use of Experts in ADR – Tips and Traps from the Other Side of the Table

By Bailey Rivard, CPA, CA·IFA, CBV, CFE, CFF

In complex technical matters, a subject-matter expert is often retained to assist counsel and the trier of fact in understanding the issues outside the law. This expertise can help translate complex information, so it tells a story relevant to the issues in dispute. To make the most effective use of experts in ADR proceedings, counsel should consider key tips and traps to avoid from the perspective of an expert.

The Expert Use of Experts in ADR: Views from Counsel Table

By David Tupper & Keith Marlowe

The expert use of experts and their reports in mediations and arbitrations is often the factor that can win or lose a case. Counsel discusses the do’s and don’ts of retaining, preparing, and using experts in ADR.

By Randall W. Block, Q.C., Justine Blanchet, Hon. Thomas Cromwell, C.C.

What happens when collective bargaining agreements and tort law collide? This intersection is increasingly at issue in the context of professional sports organizations. Can arbitration clauses extend to personal injury claims arising in the course of employment? Can Commissioners of professional sports leagues sit simultaneously as disciplinarian and arbitrator? The response from our courts is yes, if the contract says so.

By Lou Cusano, Gino Bruni, Tanis Makowsky

The Alberta Court of Queen’s Bench has once again confirmed that obtaining permission to appeal an arbitration award under section 44(2) of the Arbitration Act, which applies where an arbitration agreement is silent on an appeal right, will be a virtually impossible task. Parties wishing to have the option of appealing their arbitration awards to the Alberta courts should therefore be reluctant to rely upon this section and should instead include appeal rights in their arbitration agreements.

The Cost of Refusing to Mediate

By Kathryn Munn, C.Med, C.Arb

We have seen lots of information about using mediation to reduce the costs of resolving disputes. Now in Ontario if you do not use mediation, it could cost you money. According to a 2018 decision by the Ontario Superior Court of Justice when a party in a lawsuit is “unreasonable “ in its refusal to participate in mediation, the Court can reduce the award of costs to that party. This decision is very significant for all types of disputes. Prudent lawyers and parties involved in disputes need to bear this in mind when deciding about the use of mediation.

By Sara Nadeau-Séguin

On August 3, 2018, the International Centre for Settlement of Investment Disputes (ICSID) published a comprehensive set of proposed changes to modernize its rules for resolving disputes between foreign investors and states. This article highlights the most important changes proposed to the ICSID Arbitration Rules, which are the procedural rules used to settle disputes between an ICSID Contracting State and nationals of another Contracting State.

ADR in the Aboriginal Context

By Robert Neron, C.Arb, Q.Med

ADR encompasses mechanisms used in resolving disputes outside of adversarial litigation. Unlike the western-based dispute resolution system that bases its judgment on the evidence adduced, aboriginal ADR seeks to restore collective harmony between both parties in a case. Regardless of their differences, significant value rests in resolving disputes with an indigenous approach that would best suit both parties involved, to ensure that they are both satisfied with the outcome of the judgment. Therefore, the application of aboriginal ADR process to legal disputes would be a useful tool for dispute resolution and improvement of how ADR is conducted.

Does an Arbitrator With Subject Matter Expertise Give you a Better Decision?

By Gerald R. (Jerry) Genge

Would you prefer the contentious classic civil court process, or would you rather get it resolved by someone impatient about getting it right? This brief article describes the alternatives and one proven way to move disputes from a looming mountain of paper and process to the rear-view mirror.

Training Conflict Resolution Practitioners: the Need for New Methods and Approaches

By Evan Hoffman

“This article critically analyzes the training of conflict-resolution practitioners by private corporations, non-profit organizations and academic institutions. In doing so, the strengths of current approaches will be illustrated and ways to improve future training will be identified.”

Binding Mediation: an Oxymoron?

By Harvey J. Kirsh

“Binding Mediation” is a term dreamed up by a marketing maven. It is med-arb, although some may consider it a wolf in sheep’s clothing.” Daniel Yamshon, FCIArb

The nature of mediation is typically expressed as being consensual, non-binding and without prejudice. So is there room in the spectrum of ADR processes for what some have called “binding mediation”?

Better Than Average Returns: Making the Most of Your Investment in Mediation Binding

By Emily McCartney & Jim McCartney

Done well, mediation can be a valuable tool for parties to litigation to save time and money, and reach a confidential negotiated settlement of their dispute. Based on our experience as counsel and a mediator, these are the things that lawyers and their clients can do to maximize their chance of success and get the most out of the mediation process.

British Columbia Amends and Modernizes International Commercial Arbitration Act

By Elizabeth Montpetit

Earlier this year, British Columbia became the second Canadian province, after Ontario, to update its international arbitration legislation in line with the 2006 amendments to the UNCITRAL Model Law. In so doing, British Columbia has aligned itself with modern national and international standards, thereby increasing its appeal and status as an arbitration-friendly jurisdiction. This article discusses the key amendments to British Columbia’s International Commercial Arbitration Act and highlights which provisions deviate from the Model Law, and from Ontario’s provincial legislation.

By Neil Wittmann

A Scott Schedule is a precise columnar presentation of the issues to be decided and the position of each party on the issues. Prepared before the start of the hearing, everyone, including the Arbitrator and witnesses, is better equipped to conduct a fair and efficient process.

The Apprehension of Bias in Arbitral Proceedings: A Cautionary Tale for Counsel and Arbitrators

By David W. Gibbons

The formalities and decorum obligations found in judicial proceedings may be absent from their arbitral counterparts. However, the consequences of communications outside of the permissible channels for doing so during arbitration can be severe. Ex parte communications between arbitrators and counsel can give rise to a reasonable apprehension of bias that necessarily results in the proceeding being set aside.

Strategic tips on enforcement for in-house counsel – making sure you get the payment under your award

By Yaroslav Klimov and Andrey Panov

A claimant only goes into battle, expending time and money developing strong arguments and clever case theories, because it expects to secure payment at the end of the day. There are several strategic steps that in‑house counsel can take throughout the process to maximise the chances that the pay day eventually arrives.

By Allison Kuntz

Parties frequently agree to have their disputes determined outside of the courts by way of either arbitration or expert determination. Arbitration is typically used to resolve claims based on disputed facts and law between the parties, while an expert determination is typically used to settle a term of a contract or decide a discreet technical issue. These two types of proceedings are intended to be quite different and have different consequences.

A Peaceful Protest – An Opportunity for Public Mediation

By Rodger W. Linka

Public Policy Mediation is a facilitated process that is designed to address more complex multi-party disputes of social problems that never seem to be resolved. Across Canada one such significant and persisting issues is the failings of the child welfare system for Indigenous communities. In the following article by Rodger Linka C.Arb, the process is examined through the lens of the protest, Fourteen Teepees, on the grounds of the Saskatchewan Legislature. The case is now heading through the courts to stop the protest. In such an adversarial court process, however, the core problem of Indigenous children in care becomes secondary. A tailored Public Policy Mediation process, on the other hand, can help to address and resolve the substantive interests surrounding the issue of Indigenous children in the child welfare system.

By Martha Simmons, PhD

In today’s legal profession, there has been an upswing in the use of consensual dispute resolution processes, like mediation. Coinciding with the increase in the use of mediation, is the increase of self-represented litigants (SRLs) directing themselves through legal processes. More recently, SRLS have begun to avail themselves of unbundled legal services. This trend brings into question the equality and ethics of the mediation process where one party is represented by a lawyer and the other is a SRL. Given this new reality, lawyers must remain cognizant of inequities and re-evaluate how they engage with opposing parties, particularly, non-lawyers.

Med-Arbs – Practical Considerations for Getting the Best of Both

By David Farmer and Steven Kley

Practitioners continue to disagree about the appropriateness of combined mediation-arbitrations, or med-arbs. The clear advantage in asking the same dispute resolution professional to preside over a combined process is that there will be no need for an independent arbitrator to get up to speed where mediation has been unsuccessful. On the other hand, in common law jurisdictions, there are reasons why the usual process is that settlement discussions are conducted separately from any adjudicative process.

Stays of Canadian Court Proceedings in Favour of International Commercial Arbitration: Recent Trends

By Angus M. Gunn

When litigation arises in relation to a dispute that is subject to an arbitration agreement, the agreement’s efficacy requires that the litigation be stayed and the matter referred to arbitration. This article examines the occasions since 2016 in which Canadian courts have been asked to stay their proceedings in favour of international commercial arbitrations. On each of those occasions, the stay sought by the defendant was granted – affirming the robustly pro-arbitral stance of Canadian law. Despite this uniformity of outcome, the underlying reasons for judgment in these cases identify several themes with which courts continue to struggle.

By Geoffrey D. Holub and David M. Price

The authors discuss third party funding in respect of its suitability for clients, pre-agreement diligence, and the negotiation and drafting of funding agreements. In addition, the authors comment on some practical and ethical issues relating to third party funding agreements.

By Courtney Kachur

Parties entering into arbitration agreements do not want to limit their own access to capital in the event that a dispute arises and they need to pay for arbitration. Whether incorporated into the definitive agreement or not, parties and their counsel need to be aware of the drafting considerations associated with third party arbitration funding so that they maintain their freedom to fund their arbitration as they see fit.

La Loi sur les normes du travail : Mieux s’outiller pour négocier le meilleur règlement possible

By Justine B. Laurier et Audrey Belhumeur

Chaque année, des milliers de salariés au Québec déposent des plaintes à la Commission des normes, de l’équité, de la santé et de la sécurité du travail (la « CNESST ») pour faire la lumière sur des litiges survenus avec leur employeur ou leurs collègues de travail. Le présent article vise à outiller les employeurs sur les moyens mis à leur disposition afin de faciliter le règlement de ces dossiers, en plus de partager certains conseils pratiques qui augmenteront leurs chances de sortir gagnant d’une médiation ou d’une conciliation en droit de l’emploi.

By Erin Peters

Diversity in arbitration is a trending topic in the field. Results of a recent comprehensive survey demonstrate that there is good reason for this. Despite increasing attention on the topic, the arbitration scene remains “pale, male, and stale.” But why does increasing diversity matter? Many answers to this lead to the ultimate question: “What can you do about it?”

Getting Past Impasse with Mediator Settlement Recommendations

By Mitchell Rose

While it’s preferable for parties to a dispute to settle their own case at mediation without a mediator’s settlement recommendation, a recommendation is useful, as a last resort, to break an impasse. The author presents his “No One Gets Hurt” approach to settlement recommendations in the mediation of civil disputes.

Cybersecurity threats in arbitration are real: Why take a risk?

By Anca M Sattler

As we become more and more dependent on technology and rely on digital records and information to conduct our business, the risks of being hacked or suffer a cyber-attack are ever increasing. The risk of exposure is high in arbitration settings as well, where many parties are involved and security levels of protection vary significantly with each individual receiving information. Protecting data and information may seem like a daunting task when one weak link can undermine any security measures taken by other parties.

Third Parties to Arbitration Agreements

By David Tupper et Stefani Wesley

Third parties who are strangers to an arbitration agreement, but involved in or allegedly responsible for the underlying issues in an arbitration, can significantly affect the course of an arbitration. Many arbitrations would, if in the courts, be multi-party cases. Typically, however, in an arbitration unless there is a drag-along provision in contracts between, for example, a contractor and a sub-contractor, third parties cannot be compelled to participate. Nonetheless two cases, demonstrate that in certain circumstances, third parties to an arbitration agreement can be compelled to give discovery evidence and may be able to rely on an arbitration clause to stay related litigation.

Fast Track Arbitration

By Michael Butterfield

Time is money. When disputes arise, we all look for fast, efficient and fair methods of resolution. Fast track arbitration protocols developed by ADR Canada can save time and money. They provide a framework to resolve many disputes within as little as three months.

Without Prejudice: an Invisibility Cloak for a Mature World

By Steve Eichler and Chloe Mathioudakis

Without prejudice communications are common to court-based litigation and, its faster, cheaper sibling, arbitration. Arguably, the entirety of mediation is without prejudice since its existence in any dispute is based on joint efforts toward resolution. Yet despite the ubiquitous nature of the phrase itself, confusion still reigns. What exactly does the phrase “without prejudice” mean? Is it necessary to write these magic words on every communication made in the course of the settlement process? And if so, does the failure to explicitly state them render them powerless?

By Timothy Froese and Sierra Bilyk

It is not uncommon for parties in long-term commercial relationships to become involved in multiple related arbitrations. If so, the parties may consolidate the arbitrations into a single proceeding for the sake of consistency and efficiency. But when is consolidation appropriate? And what happens if the parties do not agree? Depending on the governing legislation, the court may intervene. That was the issue in the Pricaspian case where the Alberta Court of Queen’s Bench held it had the jurisdiction to order consolidation under the Alberta International Commercial Arbitration Act, even over the objections of one of the parties.

The Appeal of Arbitration

By William G. Horton, C.Arb, FCIArb

In an article in the last edition of Perspectives, Murray Smith suggested that arbitration is losing its appeal and that the only way to correct that is to provide greater recourse to the courts to correct “aberrant results”. However, the opposite can be said to be true.

What You Need To Know About the ICC’s New Fast Track Arbitration Process

By Rahat Godil and Max Shapiro

The International Chamber of Commerce has streamlined its arbitration process to reduce the length and cost of arbitrations with new amendments to its Rules of Arbitration which came into force on March 1, 2017. Among the most notable changes is a new expedited procedure for resolving disputes in which the amount claimed is less than US$2-million, which the ICC is implementing in response to cost and efficiency concerns raised by businesses using institutional arbitration to resolve international commercial disputes. This article discusses the major benefits of and practical considerations relating to ICC’s new expedited procedure and how it compares to similar processes offered by other international arbitration institutions.

Appellate Review of Arbitral Decisions involving Contractual Interpretation: The Exception for Standard Form Contracts,

By David E. Gruber and Nicholas M. Vaartnou

The Supreme Court of Canada recently held that issues of contractual interpretation were properly characterized as questions of mixed fact and law and that the standard of appellate review for arbitral decisions regarding such issues was reasonableness. The courts have subsequently established an exception to this standard for the interpretation of standard form contracts. This article will discuss this exception and its alleged expansion to “widely used” contracts to address when parties can rely on the deferential standard generally accorded to arbitral decisions.

By William Hartnett, QC and Michael Schafler

The availability of institutional arbitration services from the ADR Institute of Canada (ADRIC) is a new development which provides parties with another option for their arbitration. Accordingly, the authors discuss the advantages and disadvantages of ad hoc arbitration and institutional arbitration in Canada.

Is Arbitration Losing its Appeal?

By Murray Smith, LLM, FCIArb, Chartered Arbitrator

In house counsel are increasingly concerned about the suitability of arbitration for the resolution of commercial disputes because of the danger of an aberrant result from which there may be no recourse. Arbitral institutions such as the British Columbia International Commercial Arbitration Centre and the International Centre for Dispute Resolution have attempted to respond to this concern.

A Leading International Dispute Resolution Template

By Tim Martin

There are recent revisions to a leading and widely recognized model international dispute resolution agreement along with its accompanying guidance notes. These revised materials, which have just been published, were updated to incorporate the best and latest provisions from the dispute resolution world. The template and guidance notes provide a useful tool in drafting dispute clauses and managing multi-jurisdictional disputes.

Mediation Advocacy – Preparation is Key

By Dr. Martha E. Simmons

The following is an excerpt from the author’s recent book, Mediation: A Comprehensive Guide to Effective Client Advocacy (Toronto: Emond Publishing, 2017)

Practical Considerations When Dealing With Translations in an Arbitration Process

By Melanie L. Teetaert and Julie J.M. Taylor

An arbitration involving a contract dispute can often come down to a few key words or terms in the contract. What if that contract is in another language and needs to be first translated into English? How do you make sure your case is not “lost in translation”? Translation can impact the interpretation of your contract. It can increase cost and impact arbitral timelines. The solutions to resolve these problems are not always obvious or easy. This article discusses some of the practical issues that counsel should consider when dealing with translation in an arbitration process.

Effective Use of Experts in ADR

By Heather L. Treacy, QC

The engagement of an expert can be a vital step in assessing the issues, strengths and weaknesses of a case. The practice of litigation counsel is frequently to hold the evidence obtained from an expert close to their vest until late in the proceedings. This article examines whether there are ways to use experts early and more effectively to resolve those disputes that primarily turn upon expert evidence.

By Jeffrey D. Vallis, QC, FCIArb et Laura Poppel

Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 (“Sattva”) is a landmark decision affecting arbitration practice in Canada in many ways. The decision is of particular importance because of its discussion of the right of a party to appeal an arbitral award when the underlying dispute arises out of an issue of contractual interpretation. Although appellate courts have restricted Sattva’s application in the context of appeals of trial courts’ decisions, the recent SCC decision in Urban Communications Inc. v. BCNET Networking Society, 2016 SCC 45 confirms that the principles of Sattva continue to govern the limited scope of appeal in arbitration.

By R.D. (Bob) Waldon, Q.Med

At ADRIC2016, members came together to dialogue about one of Canada’s most important historical and contemporary issues that has been, and still is, very much informed by conflict; Canada’s relationship with Indigenous peoples. They shared their perspectives and ideas about the ADR community of practice’s role in this relationship and asked “What can we do? What should we do?” Their short answer was, “We should do more.” ADRIC2017 will be an important opportunity to continue this conversation and seek appropriate ways forward.

Mediation is not Enough

By William G. Horton

In this article the author discusses why mediation should not be the only strategy for settling business disputes and suggests a greater emphasis on direct negotiation and other options for in house counsel.

Construction vs Design: Sorting out Claims Involving Multiple Parties and Contracts

By Harvey J. Kirsch

This article discusses the issues which arise in the context of a construction dispute when there are numerous related contracts and multiple parties, and when one of the contracts, to which the other parties may not be privy, calls for mandatory arbitration. The article describes the risk and reality of potentially inconsistent findings and conflicting results, in the midst of a multiplicity of proceedings.

Apology Legislation and the Effective Use of Apology in Dispute Resolution and Reconciliation

By Pamela Large Moran

Within the last decade provincial and territorial policy makers have enacted “Apology Legislation” into their statutory regimes. Apology Legislation allows a party to facilitate an expression of remorse and regret, without the fear that this expression will be later used to their detriment in litigation. This article will speak to the history of apology legislation, the benefits of apologies in the mediation arena, and the necessary components of an effective apology.

Fast-tracked ad hoc Construction Arbitration

By Darren J. Reed

In many ad hoc arbitration cases there is a desire on the part of at least one of the parties to try to “fast track” the proceedings. Successfully implementing that desire can prove to be elusive, unless there is an alignment among counsel, clients, and arbitrators alike to make the schedule paramount, without sacrificing fairness. Even where such an alignment exists, a carefully drafted arbitration schedule and procedure are important fail-safes

The Secret to Settling Legal Disputes

By Mitchell Rose

”It is better to talk jaw to jaw than have a war” – Winston Churchill

Mediation of Commercial Insurance Disputes

By Mary Jane Stitt

This article is based on the author’s experience as both a counsel and a mediator of complex commercial insurance disputes. It explores certain features of commercial insurance mediations that are idiosyncratic and different from other types of business disputes. It identifies issues to be resolved early in the mediation process and recommends practices and approaches that will enhance the likelihood of a successful mediation – diffusing claims handling complaints, thorough preparation and command of the material, dispelling negative perceptions based on stereotypes in insurance relationships, and the importance of principled, patient negotiation.

Best Practices for First Procedural Orders

By Michelle T. Maniago

Arbitrations, properly designed and managed, can offer substantial time and cost efficiencies compared to traditional litigation. A comprehensive first procedural order made early in the proceeding, which sets the procedural expectations for the entire arbitration, is a key tool in realizing these efficiencies.

Confidentiality in Arbitration

By Joe McArthur FCIArb et Laura Cundari

The expectation of a confidential dispute resolution process is often what draws parties to choose arbitration over litigation. However, sometimes that expectation may not be realized. The domestic courts of the United Kingdom, Australia and Canada have each taken different approaches in interpreting the scope of confidentiality attributed to arbitral proceedings. Despite these differences, courts have consistently ordered disclosure of documents created for arbitration where the interests of justice demand production.

By Emily McCartney et Rebecca Silverberg

This article discusses a recent Alberta Court of Appeal decision prohibiting corporations from self-representing in court, and whether the decision impacts the ability of a corporate party to represent itself in arbitration proceedings.

Securing the Advantages of Arbitration

By Hon. Clifton D. O’Brien, c.r.

The commencement of an arbitration through the appointment of a tribunal does not of itself ensure that the subsequent arbitral proceedings will be timely and cost efficient. It is necessary for the parties through their counsel, with the assistance of the tribunal, to quickly address the procedures to govern the proceedings and at the same time to set a timetable leading up to agreed hearing dates. Failure to address these matters at an early stage can result in a lengthy and inefficient mode of dispute resolution. This article suggests ways to ensure that the advantages of arbitration, in terms of time and costs, are achieved by the parties.

By Gordon L. Tarnowsky, c.r. et Rachel A. Howie

This is the second part of a two-part article examining the rules and case law on security for costs in commercial arbitration in Canada. The following will review Canadian case law on security for costs in arbitration along with various leading institutional rules with respect to security for costs in international arbitration. Parties looking to have greater certainty that a tribunal has jurisdiction to direct security for costs may want to select a set of rules that expressly reference security for costs, or to specifically provide for this jurisdiction in their arbitration agreement.

Open Mediations? What Does Harvard Know Anyway?

By Douglas F. Best, LL.B.

Open Mediations – conducting mediations in one room, with no breakouts and no mediator meetings unless both sides are present. That is what the highly acclaimed Harvard Mediation course is teaching. Counterintuitive, maybe. Does the approach however have gravitas – indeed! All disputes involve people (whether for themselves or on behalf of the corporations they represent), therefore all disputes involve emotion. In open sessions, emotion based impediments get addressed (with effective mediator management) clearing the way for negotiations in respect of the real issues, which in turn increases the likelihood of resolution.

Top Five Tips for Drafting Arbitration Agreements

By Mary E. Comeau, LL.B.

A badly drafted arbitration clause can cause confusion, delay and costly court applications. A well drafted one can avoid these issues and result in the process that you hoped to achieve by agreeing to arbitrate. This article discusses the top five areas where good drafting can be of most benefit and how to avoid common drafting missteps.

Bargainer’s Remorse: Collective Bargaining Agreement Highlights Limited Ability to Appeal Arbitral Awards in Deflategate Appeal

By Norm Emblem, LL.B. et Barbara Capes, J.D.

A 2-1 majority of the United States Second Circuit Court of Appeals reinstated Tom Brady’s four-game “Deflategate” suspension on the grounds that courts owe substantial deference to arbitral awards issued pursuant to collective bargaining agreements. Such agreements are negotiated by the parties to reflect their priorities and expectations. Where the parties fail to limit an arbitrator’s authority or discretion through the collective bargaining process, the application of such broad powers is not in and of itself tantamount to unfairness or a lack of due process.

High Marks for ADRIC’s Arbitration Administration Service

By Janet McKay

ADRIC’s Arbitration Administration service is popular with arbitrators, claimants, respondents and counsel. 100% of those surveyed about the service said that it provided good value and that they would recommend it to their colleagues and associates. They appreciate the friendly, professional service that gets the process started smoothly and keeps it moving along. ADRIC offers an efficient process for the selection of an arbitrator and also helps prevent unpleasant surprises and delays along the way. ADRIC’s service is especially relevant if relations between the parties have been strained, or if one or more parties is unrepresented.

Security for Costs in Arbitration: Part One

By Gordon L. Tarnowsky, c.r. et Rachel A. Howie, LL.M.

The jurisdiction of an arbitral tribunal to award security for costs in either domestic or international arbitration can lack clarity depending on the specific arbitral agreement between the parties, the applicable rules, and the governing law. This article will examine, in two parts, the rules and case law on security for costs in commercial arbitration in Canada. This first part discusses some of the variation seen in institutional rules in Canada with respect to a tribunal’s jurisdiction to award security for costs

Online Dispute Resolution: The Tools of the Future for Mediators, Arbitrators and Lawyers are here today!

By Colm Brannigan, C.Med, C.Arb

Most dispute resolution practitioners see themselves as working face–to-face with their clients. This view has not changed in years, but it is in the process of being upended by online dispute resolution (ODR). ODR and technologies such as artificial intelligence are not sometime in the future. They exist now and we must learn to “race with the machine” if we are to be competitive in what will soon become an even more crowded marketplace.

Arbitrator Disclosure

By Earl A. Cherniak, QC

What an arbitrator should (one need not) disclose is one of the more difficult, but important questions that a prospective arbitrator must consider when offered a nomination, an obligation that continues throughout the appointment, if made. This article addresses some recent jurisprudence on the perils of non-disclosure, and offers some suggestions to arbitrators for their guidance.

Negotiating Arbitration Clauses in International Agreements

By Matthew Ghikas, MCIArb, Q.Arb et Karen Wyke

Do you rely on “cookie-cutter” dispute provisions when drafting international commercial agreements? This article outlines important considerations in the negotiation of an arbitration provision in an international agreement.

ADRIC’s New Arbitration Rules: How You Benefit

By David McCutcheon, LL.B., C.Arb

ADRIC’s new arbitration rules simplify the arbitration process, saving time and money. The rules themselves have been streamlined, making them clearer for everyone. Significant changes have been made to give the tribunal more control over document production, oral examinations and other procedural matters. There are also new rules for urgent interim relief. ADRIC’s standing committee on arbitration rules spent considerable time and effort to reach a consensus on rules that are flexible and consistent with provincial laws throughout Canada and are more consistent with international commercial arbitration rules.

Chess Clock Arbitrations – Are the Constraints Worth It?

By Trish Morrison

Arbitration is perceived as being able to provide faster and cheaper dispute resolution, which is often not the case. One area where costs may be controlled is the hearing itself. The use of a chess clock for the arbitration is one method of controlling hearing costs, which involves agreeing in advance to the total amount of hearing time and the time to be allocated to each party. Practical considerations, benefits and challenges of this process are discussed.

The Risks and Benefits of Mandatory Preliminary Meetings Between Senior Representatives

By Mendy Chernos et Lyndsey Delamont

Commercial arbitration agreements may contain dispute resolution clauses that require senior representatives of the parties to meet for a designated period of time before further dispute resolution steps may be taken. This article examines the risks and benefits of such clauses as well as key factors that parties to such agreements should consider.

By V.A. (Bud) MacDonald, c.r., et Barb Cotton

In non-international arbitration across Canada, the test for removal of an arbitrator for reasonable apprehension of bias is clear and consistent as set by the Supreme Court of Canada in Szilard v. Szasz [1955] S.C.R. 3, [1955] 1 D.L.R. 370. This article reviews several subsequent illustrative cases in which bias has and has not been found. The takeaway is that the actions of an arbitrator will have to be fairly egregious to justify removal for a reasonable apprehension of bias.

By Daniel J. McDonald, c.r., FCIArb et Valerie E. Quintal

This article provides commentary on the duties and responsibilities of the arbitrator and the parties in arbitrations involving self-represented parties and practical advice on effective management of such arbitrations.

When the Honeymoon is Over

By Andrew Roman, FCIArb

Someone brought to arbitration for breach of contract may try to defeat the arbitration by driving up costs and causing delay through court applications and appeals. These tactics can often be avoided through careful drafting of the arbitration clause in the contract.

Thirteen Steps to Success at Mediation

By David P. Stark

13 Steps to Success at Mediation’ offers a number of practical pointers on how to get an agreement, once you are at mediation. Suggestions relating to process such as have food available, don’t respond in anger, collect yeses, and one off examples relating to things like late entrants to the mediation, and calling a friend will help the parties reach a settlement.

Dispute Prevention Audits

By Stephen Antle, C.Arb

The dispute prevention audit is a new, innovative and proactive risk management tool. It enables businesses in a wide variety of industries, with a wide variety of legal or operational problems, to identify systemic weak spots in their business processes and formulate solutions for them. The dispute prevention audit can save significant cost, time and aggravation, and preserve customer good will.

When Pash Comes to Shove – Lessons from “Deflategate”

By Norm Emblem et Barbara Capes

Even if you are not a football fan, you should be paying attention to “Deflategate”. The NFL’s most recent scandal is more than just the saga of Tom Brady’s persecution by the NFL and its Commissioner, Roger Goodell. For the United States District Court for the Southern District of New York, “Deflategate” was an opportunity to explore the line between the established deference due to arbitral decisions by the courts on the one hand, and ensuring the application of fairness and due process in an arbitration on the other. The Court also examined the limits to an arbitrator’s discretion and the prejudice that can result when an arbitrator cherry-picks which ADR principles to apply. Following Judge Berman’s decision in “Deflategate”, Brady is free, but the ADR community is better off too.

Arbitration Appointments Made Easy

By William G. Horton C.Arb, FCIArb

There are many ways to overcome a sometimes troublesome hurdle to arbitration: the appointment of the tribunal itself. While having the whole arbitration run by an arbitral institution is one option, there are others that work very well in most situations. This article suggests a few.

Urgent Interim Measures

By Michael Erdle, C.Med, C.Arb

The new “Urgent Interim Measures” sections of the ADRIC Arbitration Rules provide a quick and effective way to obtain interim relief. This article looks at the new Rules and at some of the challenges for parties and arbitrators. It provides some practical tips for both applicants and respondents, to make the Rules work for them.

Moving On After Acrimonious Disputes

By Liz Foster

Long, acrimonious disputes are a challenge and the road forward is not easy even after a conflict has been resolved. The obstacles facing both employers and unions following a labour dispute are examined in this article, with expertise from union leadership, dispute resolution practitioners and lawyers.

ADR – One Size Does Not Fit All

By Gavin Giles, Q.C.

The insertion of a standard arbitration clause into any form of commercial agreement is very easy. It has thus become standard practice. So standard, in fact, that arbitration clauses are being inserted into commercial agreements without sufficient thought as to what they might mean in practical terms to the parties affected by them. This article explores the potential hurdles resulting from the careless use of arbitration clauses and offers some suggestions on how they can be better structured to ensure the most efficient dispute resolution process.

Commercial Arbitration – Making It Work

By Stephen Antle, LLB, C.Arb

Commercial arbitration can resolve disputes more quickly and with greater cost-efficiency, privacy and confidentiality than litigation, in addition to providing certainty of result, access to decision-makers with subject matter expertise and international enforceability. But it doesn’t always work out that way. Making commercial arbitration work requires using arbitration expertise, in drafting the arbitration agreement, serving as arbitration counsel and choosing the arbitrator.

Negotiation: Strategy and Communication

By William G. Horton, C.Arb, FCIArb

Negotiation is a form of interaction that involves both strategy and communication. Negotiation without strategy may lead to capitulation. Without communication, negotiation often results in stalemate. Strategy requires parties to keep their ultimate goals secret whereas communication requires that parties understand each other. In this article the author offers a simple framework within which to address both goals.

Comment intégrer la médiation collaborative dans votre entreprise ?

By Ghislaine Labelle, M.Ps., CRHA, CS

Comment intègre-t-on la « médiation collaborative » de manière plus globale au sein des entreprises? Le meilleur exemple qui me vient à l’esprit pour illustrer mon approche est ce qui est enseigné à vos enfants dans les écoles face à la résolution des conflits. Des élèves sont désignés pour agir comme médiateur auprès d’autres élèves qui vivent un conflit avant que soit impliqué un surveillant ou un autre membre du personnel. Pourquoi ne transposerions-nous pas ce concept dans nos entreprises afin de limiter les conflits, les plaintes en harcèlement psychologique et l’absentéisme au travail ?

The Benefits of ADR in IP Disputes

By Elton Simoes, MDR, MBA, Q.Arb, Q.Med

If it is true that we live in an information society, it is also true that ideas are the lifeblood of contemporary existence. In this new world, IP is one of the most important assets. This article explores the reasons why ADR may be the best and most efficient way to address the majority of the IP related disputes.

Les liens entre l’environnement de travail et les réclamations d’invalidité de longue-durée

By Claude Freeman, LL.M. (PRD), C.Med, C.Arb

Plusieurs cas problèmes en milieu de travail sont mal gérés depuis le début. Des liens sont très souvent associés aux demandes de réclamations d’invalidité de longue-durée, surtout quand l’employeur n’offre pas de formation préventive, ou ne gère pas de façon rapide et déterminée, pour aller au fond des problèmes en milieu de travail. En faisant appel à des professionnels neutres pour prévenir et gérer des cas problèmes les employeurs et les conseillers juridiques en retireront des retombées positives.

Who Appoints An Arbitrator?

By Ludmila B. Herbst

Arbitration is often marketed as offering participants their choice of decision-maker. Certainly parties’ opportunities to become involved in the selection process are generally greater than in court proceedings. However, clients should be mindful of limitations on their role even in the arbitration context. Though arising out of relatively unusual circumstances, the recent decision of the Alberta Court of Appeal in TransAlta Generation Partnership v Balancing Pool, 2014 ABCA 294 serves as a good reminder that the reality may fall short of arbitrating parties’ expectations.

Courts and the Arbitral Process: Referrals of Questions of Law to the Court

By James H. Smellie

Commercial counterparties contemplating arbitration clauses as part of their contract want the terms of those provisions to meet all of the formal requirements, and accurately capture their intentions. Where they wish to include the ability to require the arbitral tribunal, at the request of one of them, to refer questions of law to the court, care must be taken to ensure their expectations are covered by such an agreement. Matters of contractual interpretation should not lightly be assumed to be questions of law subject to such a provision.

Safe and Sorry: Apologies in Canada

By Bevin Cate Worton and Marina Pavlovic

Canadian apology laws preclude courts, tribunals, and arbitrators from finding that an apology is an admission of liability. However, there are limits to the protection that apology laws afford. Consider the limitations when advising your client whether or not to make an apology, as well as when and how any apology should be made.