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Clear procedural order key to achieving arbitration objectives

Arbitration can serve as an effective alternative to timely and costly litigation, but employing case management before, during and at the conclusion of the process is key, Toronto litigator and commercial arbitrator Marvin Huberman tells Law Times.

As the article explains, a meeting with the arbitrator will set out the procedures, time frames and cutoff dates with a goal of balancing discipline with flexibility.

If possible, the meeting will also explore expedited procedures on pleadings, document production, number of witnesses, comprehensive witness statements, a structure for examining and questioning witnesses, venue and page-length limitations in briefs.

Huberman says he seeks “a clear and unambiguous procedural order” to achieve the objectives of wider enforceability and flexibility.

Law Times notes there are variations to choose from when planning for binding arbitration.

Huberman describes a hybrid final arbitration approach where parties each submit a proposed monetary award to the arbitrator before its conclusion and then the arbitrator chooses one award without modification. 

The parties can also agree privately that the award will be in a certain range, no matter the arbitrator’s decision, says the article.

Another process results in the sealing of the arbitrator’s decision while the parties try to arrive at a settlement. If they're unsuccessful, the award is unsealed and becomes binding, says Law Times.

“Commercial arbitration is a terrific way of resolving disputes, providing that it’s appropriate,” says Huberman, which means having regard for the parties, the problem and the process.

“In arbitration, the parties generally have wider power to select and tailor the procedures. As well, they can slim down and restrict document production and oral examination and discovery and even forgo it,” he says.

An additional advantage, says Huberman, is that arbitrated decisions are virtually impossible to set aside outside of grounds of fraud.

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