Choosing an Arbitrator: 15 Things for Counsel to Consider
Here is a non-exhaustive list of considerations for you, your client and opposing counsel (“OC”) when searching for an arbitrator for a civil dispute in Ontario:
- Arbitration Agreement Requirements
If the arbitration is pursuant to a pre-existing arbitration agreement between the parties (i.e., an arbitration clause in a contract) then does that agreement require:
- a single arbitrator or a panel?
- any pre-requisites to arbitration such as serving a Notice to Arbitrate, or the holding of a mediation?
- a specific type of arbitrator (i.e., that the arbitrator be a lawyer or a different professional, or located in a particular place, or is a member of a particular organization)?
- the use of certain procedure rules (i.e., ADRIC Arbitration Rules)?
- mediation-arbitration (“med-arb”)?
- Other Initial Considerations
It is important to address the following questions as early as possible, which may or may not be addressed in an arbitration agreement:
- what is the seat of the arbitration (which jurisdiction’s law applies to the conduct of the arbitration)?
- If the seat of arbitration is Ontario, which legislation applies: the Arbitration Act, 1991, or the International Commercial Arbitration Act, 2017?
- what is the substantive law that applies to the arbitration?
- what happens if the parties cannot agree on the appointment of an arbitrator?
How busy are the arbitrators you are considering? Pay attention to availability not just for hearing dates, but also to deal with pre-hearing matters like conference calls and motions, along with award writing.
Do they have an hourly rate for preparation and hearing of procedural matters? Do they have a daily hearing rate? Do they have an award-writing rate? How does that compare to other arbitrators?
- Cancellation Fees
What is their policy?
- Mode of Hearing
Does the arbitrator conduct virtual or in-person hearings, or will they offer both (including hybrid)? How does this affect overall cost (including disbursements) and timing and any other relevant factor?
Even if med-arb isn’t required by the arbitration agreement, it may be worth considering for various reasons, including efficiency and finality. Also, does the arbitrator you are considering conduct med-arbs, and what is their approach to this hybrid process?
- Final-Offer Selection
Also known as ‘baseball arbitration’. Consider if it is appropriate for your matter as it can result in significant cost and time savings.
Consider the necessity or desirability of arbitrator subject-matter expertise, as well as experience dealing with similar matters or even personality styles.
What do your colleagues say? Ask around. Look online to see what you can learn.
Consider the steps that can be taken to increase neutral diversity. See pages 19-21 of the Ontario Bar Association’s 2022 report on Neutral Diversity in Ontario.
- Conflicts or Reasonable Apprehension of Bias
Do you (or your firm members), or your client, know the arbitrator personally, or have some other connection to them, which the arbitrator should disclose? If so, this may or may not rule out appointing the arbitrator, but it would be best to make this kind of disclosure (if known) to OC ahead of time and before approaching the arbitrator.
- Terms of Appointment (“TOA”) or Agreement to Arbitrate
Consider asking for the arbitrator’s standard TOA or form of agreement ahead of time for your advance review.
Consider discussing with OC the type of arbitration process you think might be appropriate before speaking to the arbitrator—or at least identify where you disagree on process matters.
- Prospective Arbitrator-Initial Outreach
A best practice is to contact the prospective arbitrator by initial email (after agreeing on a particular candidate-arbitrator) and jointly with OC. If a call is arranged to discuss the matter with the arbitrator, it is should be a joint call with OC (which the arbitrator might insist on in any event).
If you are a lawyer or paralegal looking to hire a mediator or arbitrator for your civil dispute – including employment law, business disputes, estate litigation, insurance matters, and construction law – I have been a neutral for over a decade. I conduct mediations, arbitrations and med-arbs via videoconference, in-person, and in hybrid formats.
This blog is for educational purposes only and is not intended as legal or other professional advice.