You’ve picked an arbitrator, now what?
By Paul Russell, AdvocateDaily.com Contributor
After an arbitrator has been selected to lead an alternative dispute resolution (ADR) process, both sides have to be ready to work with that person to get the issue settled efficiently and fairly, says Toronto litigator and commercial arbitrator Marvin Huberman, a fellow of the Chartered Institute of Arbitrators.
“What really needs to get done first is to tailor the process to match the desires of the parties and the problem in an effective arbitral fashion,” Huberman tells AdvocateDaily.com.
“All parties must be involved in a pre-hearing conference call, and come up with a comprehensive arbitration plan,” he says. “From there, everything proceeds from a very solid base, and the goals of arbitration can be achieved, with a much better prognosis for success.”
Huberman says the most effective arbitration plans avoid duplicating the elements that often result in lengthy and costly civil litigation in the courts.
“The key is to put a plan in place that avoids unnecessary and unproductive steps, but looks at the individual needs and objectives of the participants,” he explains. “These plans must be carefully designed at the onset, with the arbitrator monitoring, modifying or defending that plan when necessary, as there is going to be pushback from at least one party or counsel during the proceedings.”
Huberman says successful arbitrators have to be fully engaged, “proactively shaping and controlling the entire process. They have to actively manage the pre-hearing and hearing phases of the case, to avoid delays, and make sure the issues submitted are decided on their merits in an efficient and timely manner.”
He says the arbitrator has three essential tasks. The first is to support the stakeholders and to understand what they are trying to achieve. The second is to control the process, making sure it stays focused and on track. The final task is to help find a solution for the issue at hand.
“That can either be done by getting the parties to resolve it themselves or having someone else mediate it within the course of the arbitration. Or ultimately, the arbitrator has to adjudicate and make a decision,” Huberman says.
ADR is designed to be “an effective and efficient alternative to traditional litigation because court cases are often too frustrating, expensive and stressful for most people,” he says.
An ADR hearing could be as short as one day or may last several weeks, depending on its complexity and factors such as the number of witnesses, the amount of evidence to be presented or whether it is a domestic or international dispute, Huberman explains.
“With any process, you can always work on efficiencies, and find ways to make it more streamlined and cost-effective,” he says. “There is always something to trim, without sacrificing the goal of reaching a fair and just result.”
Huberman, who is president of the ADR Institute of Ontario, says he is passionate about the process. “Through ADR, we are trying to figure out how to make the world a better place,” he says.