Michael Ford (post until Oct. 31/19)
ADR, Employment & Labour

Arbitration underutilized in employment law: Rudner

Arbitration gives the parties to an employment dispute the chance to create their own specialized court, employment lawyer, mediator and arbitrator Stuart Rudner tells AdvocateDaily.com

Rudner, founder of Rudner Law, says arbitration was once a popular dispute resolution tool in the employment law world, but it gradually fell out of favour. However, he says it could be time for a renaissance, judging by some of the shared concerns of his colleagues at the employment law bar.

“The court system is seen as a very lengthy and inefficient process, and in the end, you may end up with a judge who has no real experience in employment law,” he says. “Often you will hear employment lawyers say that they had to teach the judge the law as well as advance their arguments, which makes the result unpredictable.”

Rudner says he and his colleagues dream of a specialized stream for employment law matters, in the mould of family court judges, but admits there is little prospect this will become a reality.

“Arbitration is a way to achieve that same outcome,” he says, explaining that the parties can choose their own employment-law focused arbitrator to act as the “judge.”

“Counsel can agree on the process, set the timelines, lay out exactly what type of evidence will be required, and how it should be brought in,” Rudner says. “They can also determine the types of remedies that can be imposed.”

In addition, he says the nature of court is not conducive to predictable hours, and that a hired arbitrator can increase efficiency by bypassing those issues.

“A day in court can quickly be reduced to three hours of actual court time if you start late and the judge has other matters to attend to,” Rudner says. “With arbitration, the parties dictate the schedule and the 'judge' is accountable to them, so the time is used more effectively and efficiently.”

Having a subject matter expert as the decision-maker means any type of employment law dispute is well suited to arbitration, he says. However, the arbitrator and process can be tailored according to what individual disputes require.

“If it’s a simple severance case, then you can streamline things because there’s probably little need for live evidence and a decision can be rendered very quickly,” Rudner says. “If there are allegations of cause or harassment or a need for more evidence, this can easily be put into the process.

“In contrast, civil litigation is one-size-fits-all,” he adds.

Rudner says med-arb, which combines mediation and arbitration, is something that should be given consideration. This can allow the parties to ensure that one way or another, their dispute will come to an end without undue delay.

When a person with experience in employment law handles the case, the chances of an agreement means the arbitration portion of a med-arb will not always be needed. For example, Rudner’s own settlement rate in his mediation practice is more than 90 per cent.  

“Hopefully, you will go into the mediation, and everyone will agree. But if not, you take advantage of the fact that you’ve got a subject matter expert who already knows the case,” he says.

In many cases, the mediator will have enough information after the mediation to render a decision. But where appropriate, Rudner says parties may wish to adduce additional evidence to allow the arbitrator to render their decision with a full knowledge of the facts.

“It’s a much better option than going back and resuming the litigation process, where you can spend months or years waiting just to start all over again with a judge who may not have experience in employment law.

"We do not have a specialized employment law court," Rudner says. "Rather than complaining about that, employment lawyers should use arbitration to their advantage by first, including arbitration clauses in their agreements, and second, proposing arbitration when disputes arise.

"Arbitration can also be combined with mediation so that, in those situations where mediation does not result in a settlement, the mediator can put on their arbitrator’s hat, review any additional evidence that is appropriate, and then render a decision. This will eliminate the unnecessary delay, inefficiency and unpredictability of the civil litigation process," he says.

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