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The difference between arbitration and a lawsuit

Region: Ontario Answer # 502

Whether a dispute is decided in the civil courts or by way of binding arbitration, the disputants have decided to have a person outside themselves impose a decision.

In a lawsuit, only one disputant, the plaintiff, can insist that the dispute be decided in the public court system. If the dispute is to be decided by way of arbitration, then all disputants must agree to this process. An aggrieved party cannot insist that the dispute go to arbitration unless it was previously agreed by all disputants, or after the dispute arose they agree to have it arbitrated.

In a lawsuit, the disputants cannot select their judge. The disputants are bound by the court’s rules of procedure. Especially where there is case management, the court will decide the timetable for the various steps and the date of hearing. In a lawsuit, legislation, common law and the rules of procedure will determine what decisions of the trial judge can be appealed or reviewed.

In comparison, there is much greater flexibility in an arbitration. For certain, the disputants will be able to select their arbitrator or arbitration panel and determine the date when the dispute will be heard. The parties will determine whether the hearing will be in private, recorded or transcribed, and to some extent, the parties have considerable latitude in determining the procedure and steps that will be taken leading up to the arbitration hearing and during the arbitration.

Disputants opting for arbitration will also have to select the place where the arbitration will occur. It must be noted, however, that disputants selecting arbitration must look to the applicable arbitration legislation in their jurisdiction to determine the extent of their freedom to structure and draft their own arbitration process.

Awards of arbitrators made under applicable legislation can be enforced, as can be judgments of courts hearing and determining lawsuits.

If you are looking for a mediator or arbitrator who specializes in family law matters, contact a family law lawyer.




								

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