Written by: Mallory Hendry
ADR Chambers’ Tanya Goldberg says more familiarity with the process is needed
June 1, 2021
It’s no secret that traditional litigation is a costly and, especially in the throes of the COVID-19 pandemic, much-delayed process. For lawyers whose clients want a fast and low-cost solution to their dispute, a good option to consider is expedited arbitration.
“I’m surprised they’re not more popular because essentially the courts aren’t hearing anything unless it’s urgent these days,” says Tanya Goldberg, manager of ADR Services at ADR Chambers. “Lawyers may not be familiar with what can be a great potential solution for their clients.”
Fixed-fee arbitration offers an inexpensive alternative to a court process — and keeps clients out of the backlog of cases in the court system as well. ADR Chambers has three options: Standard Expedited Arbitration, Final Offer Selection and No Reasons Arbitration that run at $7,500, $6,500 and $3,000 plus HST per party, respectively. Each offers an even lower price point — $3,000, $2,000 and $1,000 plus HST per party — if parties choose in-writing over an oral hearing. These fees are fixed, distinguishing expedited arbitration from the more conventional model where there’s a daily or hourly rate and “while arbitrators are generally good at providing parties with an estimate and staying within that envelope, there are no guarantees or caps.” Goldberg notes.
The maximum number of hearing days is one, the maximum number of witnesses you can have is two per side and there’s a “no experts” clause in the rules because expert testimony tends to be more involved. There are also restrictions on the number of documents — maximum 20 documents and 200 pages — the length of briefs and the amount of time allocated to different steps of the oral hearing, if the parties choose to have one. Unlike conventional arbitration or court processes, there are no preliminary motions or oral or documentary discoveries, which works to keep costs down for the parties. The arbitrator can still apportion costs at the end of a hearing but only when it comes to his/her own fees. They cannot make an order with respect to legal costs between the parties.
All expedited arbitrations have strict timeframes with deadlines imposed on the parties, “and we make sure they meet them, otherwise we can’t meet our deadline for a fast process.” Goldberg notes. The process is meant to take less than 90 days from the appointment of the arbitrator to the issuance of the award, which is quick by most litigation standards, and there is also a firm deadline for the arbitrator’s decision.
“Within ten business days of the conclusion of the hearing the arbitrator has to deliver either the decision or the decision and the reasons, depending on what the parties chose,” Goldberg says. “The reasons can be abbreviated given the amount of time the arbitrator has.”
While there are a lot of limitations to the process in order to keep it at its low price point and deliver on its short turnaround time, there is a clause in the rules that says if the parties agree to change the process they can — but the arbitrator can also revise the fees if the changes translate to more work for them. Changing one witness to an expert is likely not going to impact the fee structure, but wanting to file hundreds more pages of documents likely will cause a hike in the cost.
“That’s a discussion the parties have with the arbitrator,” Goldberg says. “It does add a fair bit more flexibility to the process.”
Designed to live up to the hallmarks of fast and inexpensive, as with everything in life emphasizing certain goals can come at the cost of others. Expedited arbitrations aren’t the best solution for every type of dispute — where the parties know they need experts, or would far exceed the document limit, for example — but they fit the bill where the dispute is relatively small or where it would be a significant savings to not bring clients and counsel in from far-flung geographical locations, once COVID allows.
“If you think you can keep fairly close to the process, it doesn’t matter what the subject matter of your arbitration is,” Goldberg says. “As long as you can live with the limitations, or agree to modify them, this can be an excellent and inexpensive way of resolving a dispute — and the parties can move on with their lives.”