Rapid-Fire Debates on Key Dispute Resolution Issues
On Day 2 of CanArb Week 2022, the ICDR, Arbitral Women and the HKA Program hosted a panel about key dispute resolution issues. The moderator for this panel was Elizabeth Robertson (Director of ICDR & ICDR Canada), and the panelists, Laura Cundari (Partner at Blake, Cassels & Graydon), Junior Sirivar (Partner at McCarthy Tétrault), and Lorna Tardif (Partner at HKA), engaged in a rapid-fire debate about hot topics in commercial arbitration.
Robertson first asked the expert panelists whether they prefer institutional or ad hoc arbitration proceedings. Sirivar initiated the debate by saying that he preferred ad hoc proceedings because they have the benefit of providing greater confidentiality. The confidentiality of a decision can be as important as the actual outcome in certain sectors (such as mining). By contrast, Cundari favoured institutional proceedings. She argued that hundreds of hours have been spent on creating institutional rules and that the idea someone can do better as a party is faulty. There are also several built-in processes that one would not have access to in an ad hoc arbitration—appeal tribunals and emergency arbitrators, for example. Tardif agreed with Cundari, indicating she favoured institutional proceedings as well.
Robertson then asked the panelists what they believed was the best way to incorporate mediation into the resolution of a dispute. Sirivar began by indicating people should consider how arbitrations are generally conducted, in particular the emphasis that most tribunals put on encouraging party settlements, such as by directing the parties to exchange written arguments up-front that contain their legal reasoning and the evidence on which they rely. A mixed dispute resolution method such as med-arb presents opportunities for settlements that parties may not otherwise take advantage of, , so counsel lose very little in including mediation in the resolution process. Further, having the adjudicator also be the mediator has its advantages. Some people believe that the mediator should be different from the adjudicator because it could potentially put parties in compromising positions, but Sirivar disagrees. Sirivar purports that in commercial arbitration, nothing is left unknown by the time the actual proceeding happens and therefore, the risk that something being told to the other side would harm a party is very low. Cundari agreed with Sirivar. Tardif said that she agreed in part, and further explained that mediation is also useful as a way to learn about the opposing position, for parties, counsel, and expert witnesses. She was a fan of both early mediation and of making repeated attempts at mediation throughout the proceedings.
Robertson then asked whether the panelists preferred tribunal-appointed experts or party-appointed experts. Tardif kicked off by stating that she preferred tribunal-appointed experts. She argued that they provide arbitrators the opportunity to have candid, open discussions with the expert—especially if they do not understand something—and put the expert in a position where they are truly independent. They can openly discuss the different options that could apply in a certain situation and the relevant factors at play. Cundari disagreed and stated that she preferred party-appointed experts. She had a concern with subverting the role of the tribunal by using tribunal-appointed experts, as the tribunal may feel as though they need to defer to “their” expert. In a party-appointed situation, there is a real ability to test the evidence, and the adjudicator does not necessarily need to accept it. She further argued that parties should be allowed to develop their cases independently. Sirivar reserved judgment on this question, stating that his preference depends on the context of the situation.
The topic then shifted to the best way to reduce the workload for arbitrators without compromising the integrity of the outcome. Sirivar asserted that time and costs spent on broad discovery could be cut down, whether documentary or oral. He argued that often too much time is spent arguing about documents, when very few documents actually matter to the outcome of the case. Cundari jumped in and noted that adopting the international style of arbitrating, where counsel submits their case in writing before going to a hearing, would aid in reducing time spent on discovery. Many cases can be comprehensively addressed solely in writing; therefore, arbitrators should gauge whether a case actually needs to go to a hearing. She then suggested that counsel be disciplined about cross-examination, since they tend to overestimate the amount of time they need. Tardif rounded off the discussion by recommending that arbitrators introduce more technology into the process. It costs money to get documents, and it would be more cost-effective to obtain them through the better use of efficient technologies.
Robertson then raised the cross-examination of experts: should arbitrators let expert reports stand on their own, or try and find common ground among party-appointed experts? Tardif had concerns about counsel attempting to adjust or adapt reports for this purpose. She is in favour of having experts put forward their reports in a way that facilitates understanding. However, she also recognizes the need for expert reports to aid the decision-making of the tribunal. Sirivar argued that although most experts are independent, they operate in the context where they are provided with information from a particular perspective, with the goal of achieving a particular result. Cundari concluded this discussion by stressing that commonality is the advocate’s job to find, not the expert’s.
The panel then shifted to the topic of third-party funding, and whether there should be mandatory disclosure of it. Tardif responded first with a resounding “no”, stating that funding is a private matter, and a third-party funder is not a party to the dispute. She argued that disclosure would only add to the complexity of an arbitration, and a defendant can tactically use funding against the plaintiff to try and achieve a negotiated outcome that is less favourable to the plaintiff than a tribunal award would be. Cundari and Sirivar disagreed, stating that there should be mandatory disclosure. Cundari explained that people wear multiple hats in the arbitration world, and there is a tendency to over-disclosure in arbitration in order to maintain the integrity of the process. Sirivar agreed, but also raised concerns about potential conflicts of interest arising from relationships between funders and counsel, or funders and arbitrators.
The panel concluded by discussing whether redacted awards should be published. Sirivar stated that he selfishly believes they should be published because they allow lawyers to understand what tribunals have said in the past. He noted that, practically speaking however, they should not be published. Arbitration has prospered because parties can select their own adjudicator, and because they carry out their disputes in a fulsome way in a confidential manner. They are comfortable in that they are not obliged to publicly divulge industry secrets or the positions they are taking in a dispute. If parties become concerned about the disclosure of awards, arbitration would be diminished.
Cundari and Tardif disagreed, arguing that that redacted awards should be published. Cundari explained that the arbitration community is small, and that if we want it to grow, we need to make sure people do not feel like outsiders. Publishing awards will give people comfort about the process and parties will be able to make a more informed choice about their arbitrator (and whether they can render a proper award). Tardif argued that a published jurisprudence is necessary to understand what is going on within tribunals. She argued that redacted awards should be published because otherwise, when a key issue is decided through arbitration, no one aside from the immediate parties knows what the final decision is.
Robertson ended the panel by thanking the panelists.
* JD Student, Queen’s University Faculty of Law; Co-Editor in Chief, Canadian Journal of Commercial Arbitration.