ARBITRATION v LITIGATION
If you are involved in a civil dispute ranging from a simple debt collection to a commercial dispute among partners, shareholders, or contractors, here are some quick tips that will help you decide how to proceed.
1) If you are considering a lawsuit, it is important to know that actions in the Superior Court of Justice will probably take between 5 and 7 years to reach trial. Part of the delay is due to the complexity of the civil rules of practice in each of Canada’s provinces. And these rules must be complied with. In opting to use our courts, you don ‘t get to cherry pick the rules you like and discard the ones you don’t. As well, provincial government funding shortages are delaying construction of new courts and appointment of trial judges.
2) Where the dollar value of your dispute is relatively low, say between $50,000.00 and $100,000.00, the time you are likely to spend and the cost of legal services may frustrate you.
3) You may want to consider submitting your dispute to arbitration and by pass the courts. If you already have an agreement with the other party(ies) to arbitrate your dispute, you have the right under provincial law to notify the others that you want to arbitrate. And that right generally trumps any effort to go to court. One exception involves employer-employee disputes where parties may have legal rights that courts of law alone can enforce.
4) If you haven’t made an agreement with the other parties to arbitrate, you can still do so. If you are able to agree on a single arbitrator, you keep the costs down since each side also has to pay his own legal expenses. If you can’t agree on a single arbitrator, each side can name one and the two named arbitrators can select a third.
5) Once you have selected your arbitrators, your lawyers will be contacted by them to meet at a first preliminary meeting. It is at this meeting that the lawyers map out a chart and a timetable of all legal procedures that will apply from start to finish.
6)If you insist, procedures can be eliminated or simplified. In arbitration, parties can cherry pick the procedures they want to follow. The more the parties insist that their lawyers do so, the lower the cost of arbitration and the quicker they get to the finish line.
