Area of Law: Alternative Dispute Resolution (ADR) - Arbitration and Mediation
Answer # 498
Criteria for selecting an arbitratorRegion: Ontario Answer # 498
The arbitration profession is not regulated in Canada. Therefore, people do not have to take any specific required courses or pass any tests in order to become arbitrators. As a result, you cannot go to any one source to obtain information about an arbitrator.
Having said that, however, many colleges and universities offer courses in arbitration and dispute resolution that lead to diplomas or certificates.
For example, in Ontario, the University of Waterloo offers the “Conflict Management Certificate Program”, and York University offers a “Certificate in Dispute Resolution”. Osgoode Hall Law School at York University even offers a Master’s degree in law specializing in dispute resolution.
There are also self-regulating ADR (alternative dispute resolution) organizations. The best known is the federal ADR Institute of Canada and it’s provincial affiliates in:
- British Columbia,
- Saskatchewan, and the
- Atlantic provinces.
Full membership in the ADR Institute of Canada is available to individuals who:
- are of good character and reputation,
- are practicing in the area of arbitration, mediation or alternative dispute resolution, and
- have either successfully completed an Institute-approved 40-hour course in arbitration or mediation or have equivalent expertise arising from experience in the field.
The Institute’s roster of practitioners includes arbitrators who have completed the educational requirements established by their organization to receive accreditation and designations such as “Certified Family Arbitrator” and “Qualified Arbitrator”.
Members must adhere to a Code of Conduct and Code of Ethics, as well as National Arbitration Rules. The organization also provides a Discipline and Complaint Procedure for members of the public.
The ADR Institute of Canada and its provincial affiliates also offer various other ADR services, including:
- Courses and diplomas,
- ADR outsourcing, and
- Referrals to member ADR professionals.
What should you consider when choosing an arbitrator?
One of the primary considerations in selecting an arbitrator is: Do you want a person primarily known for his or her understanding of law or someone who is thoroughly familiar with the subject matter of the dispute? Or, do you want someone who is well versed in both?
There are no limits to the kinds of arbitrations that can be structured. Despite that fact, most arbitrations will resemble the procedure, form and format of a courtroom hearing. There may be witnesses, witnesses will be sworn, witnesses will give testimony, and witnesses will likely be cross-examined. During the arbitration hearing, one party or the other may make a motion for interim relief or on a procedural matter. If the arbitration takes on this air, then you may want to have an arbitrator who is familiar with legal procedure, legal precedent and legal reasoning. A person trained in the law, such as a lawyer, would be well-suited for arbitrating in such circumstances.
Often, disputes are deeply steeped in a particular area, such as family law, construction, accounting, medicine, or computers. In such cases, the disputants may feel comfortable in addressing an arbitrator who has great familiarity with the subject matter. With such an arbitrator, basic terms do not have to be explained, and the arbitrator may be readily able to relate to the experiences being presented.
In some instances, it may be possible to find an arbitrator who is both well versed in the law and has experience in the subject area in which the dispute has occurred.
Under some provincial statutes, if the number of arbitrators is not specified in the arbitration agreement, then there will be a single arbitrator. If the disputants have difficulty agreeing on the one person who will act as the arbitrator, and if the arbitration agreement does not provide a procedure for the appointment of an arbitrator, then one of the disputants can apply to the court to appoint one.
It should be kept in mind that in the public court system, disputants cannot forum shop. That is, they cannot pick the judge that they feel best understands the subject area or has the best appreciation of the law that will arise and be relevant in the dispute. In the public court system, the judge fulfills the task and dispenses justice on the basis that he or she is impartial, unbiased, has no conflict of interest, and is capable of appreciating the facts and applying the law.
In an arbitration, the disputants can select whomever they want to be the arbitrator. Of course, all disputants must agree on the person selected. Who is best suited for the task will depend on the circumstances, the dispute, the kind of arbitration that has been structured and ultimately the agreement between or among the disputants.
If you are looking for a mediator or arbitrator who specializes in family law matters, contact a family law lawyer.
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