Area of Law: Alternative Dispute Resolution (ADR) - Arbitration and Mediation
Answer # 499
The arbitrator's roleRegion: Ontario Answer # 499
Number of arbitrators
Under Ontario statute law, if the number of arbitrators is not specified in the arbitration agreement, then there will be a single arbitrator. However, persons in dispute may have difficulty agreeing on the one person who will act as the arbitrator. In that case, if the arbitration agreement does not provide a procedure for the appointment of an arbitrator, then one of the disputants may apply to the court to appoint one. Always refer to applicable legislation in the relevant jurisdiction to see if this point applies.
Duties and powers of an arbitrator
All provincial arbitration legislation has provisions dealing with the duties and powers of the arbitrator. In Ontario, the statute has provisions dealing with, among other things, the duty of an arbitrator, disclosure requirements of an arbitrator, acceptable challenges to an arbitrator, termination of an arbitrator’s mandate, removal of an arbitrator on application to the court, scope of the arbitration agreement or jurisdiction of the arbitrator, and the powers of the arbitrator to order the detention, preservation or inspection of property or documents of the disputants and to grant certain injunctive and other related forms of relief.
In general, it may be said that an arbitrator or arbitral tribunal must decide a dispute in accordance with the law, including equity, and may order specific performance, injunctions and other equitable remedies. Legislation may permit such a requirement to be varied so that the tribunal can have no such limits. For example, in some jurisdictions, the parties could presumably empower the arbitrator to decide on any basis whatsoever or to decide on the basis of interests learned by the arbitrator.
In Ontario, to ensure impartiality, the arbitrator(s) cannot conduct any part of the arbitration as a mediation or conciliation process. It is interesting to note that the equivalent provision in other provinces may be seen as directly opposite to that of Ontario. Alberta’s Arbitration Act, for example, provides that the arbitral tribunal may, if the parties consent, use mediation, conciliation or similar techniques and may then resume their roles as arbitrators without disqualification.
There is no statutory prohibition, however, against the parties agreeing, for example, to conduct a Mediation/Arbitration. The American Arbitration Association defines a Mediation/Arbitration as:
A process that employs a neutral, selected to serve as both mediator and arbitrator in a dispute. Mediation/Arbitration combines the voluntary techniques of persuasion and discussion, as in mediation, with an arbitrator’s authority to issue a final and binding decision.
In most cases, the arbitrator conducting an arbitration, does the following:
- Determines the time, date and place of arbitration;
- Determines the meeting place for hearing witnesses, experts or parties, or inspecting documents or property;
- May require that the parties submit their statements within a specified period, or may permit the parties to submit their statements orally;
- May conduct the arbitration on the basis of documents;
- May appoint an expert to report to it on specific issues;
- May issue a notice requiring a person to attend and give evidence at the arbitration;
- May, in deciding the dispute, take into account any applicable usages of trade;
- May award costs of an arbitration which include the parties’ legal expenses and arbitration expenses; and
- May award prejudgment and post judgment interest.
An arbitrator or arbitral tribunal is usually empowered to award costs of the arbitration.
Subject to applicable legislation and any arbitration agreement, the decision of an arbitrator may be appealed to a court of law. In some cases, the parties may opt out of all the appeal provisions set out in the applicable statute.
If you are looking for a mediator or arbitrator who specializes in family law matters, contact a family law lawyer.
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