Resolving Disputes During COVID-19: Considering mediation and arbitration

As Ontario litigants will have been told by their lawyers, and prospective litigants likely will have learned from news coverage, Ontario courts are now closed to all but demonstrably urgent matters. To a large extent, matters considered by the court to be urgent will likely relate to family law issues and rarely to commercial disputes.

In many cases, defendants in commercial litigation cases will consider this to be something of a silver lining around their situations generally. Most defendants are in no hurry to get to trial and will regard the procedural delay currently being experienced as something of an advantage. Indeed, in my experience defendants typically seek out ways of delaying what might be an adverse result in the hope, for example, that the party suing them will lose interest or go out of business before the final reckoning takes place.

However, there are cases in which both parties to a dispute have a genuine interest in getting to the finish line sooner rather than later. This may arise because business realities make it important that the dispute “comes off the books”, for example because one or both of them is interested in selling the business, seeking financing, or entering into some other business transaction that would be negatively impacted by the existence of a lawsuit. Alternatively, this situation may arise where both parties genuinely believe that they are going to win and have no particular reason to delay getting to a result.

One alternative available to parties in those circumstances is to proceed by way of arbitration. While the courts may be closed, arbitrators are still in business and there are many qualified arbitrators who are willing and able to conduct arbitration hearings using Zoom, WebEx, or some other such vehicle.

There are some disadvantages to proceeding in this manner. Aside from the fact that arbitrators, unlike judges, are paid by the parties to provide their services, the conduct of a legal proceeding by video is simply not as effective, from the prospective of counsel, as dealing with the matter in person. In my view, it is always going to be more effective for counsel to examine and cross-examine witnesses and make persuasive arguments in person rather than by video. This is particularly true where the matters in dispute involve significant credibility issues. In those cases, it is important for counsel and for the judge or arbitrator to be able to observe the demeanor of witnesses and the nuances in their behavior in as much detail as possible. While video may be somewhat effective in that regard, obviously it is inferior to an in-person attendance.

One dispute resolution technique which can be pursued just as effectively through Zoom as it would be by means of a personal attendance would be mediation.

Again, there are many qualified mediators who are more than happy to conduct mediations by video. If necessary, arrangements can be made through one of a number of court reporting services, such as Neeson’s Court Reporting, who now provide the appropriate video facilities. Arrangements can be made for the parties and their counsel to “meet” in a joint session and then split off into separate “rooms” so they can deliberate, both with and without the mediator attending, with the same element of confidentiality that they would enjoy in normal circumstances.

To some extent, litigation process in Ontario has been suspended. However, where both sides to a dispute are interested in seeing the matter concluded, other avenues are available to achieve that objective.

If you have any questions about the mediation or arbitration process or would like to begin a mediation or arbitration, please do not hesitate to reach out to contact me.

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