As the Courts in British Columbia continue to grapple with the consequences of the worldwide pandemic, it has become clear to all interested observers just how many challenges the judicial system in British Columbia is facing. British Columbia’s Attorney General has prioritized criminal and family court cases in order to reduce the court’s backlog and curtail further delays. As a result, commercial litigants are now at the back of the line with respect to the setting of trial dates. In these unprecedented times, commercial litigants who have lost their trial dates due to the pandemic or who have had their trials postponed to allow for the implementation of infection control measures would be wise to seriously consider arbitration as a speedier and more economical alternative to resolving disputes.
Arbitration has always been a cost-effective option for dispute resolution due to the expertise of adjudicators, streamlined discovery procedures, and a more efficient hearing process. In the midst of the COVID-19 pandemic, however, the advantages of arbitration have become even more compelling. This article will discuss the three main advantages of arbitration in today’s world: 1) technology; 2) adaptability; and 3) flexibility.
E-Filing and the Virtual Court
Technology has been the primary reason why parties have been able to continue with ongoing arbitration proceedings during the pandemic even as court proceedings have come to a standstill. While the electronic filing of pleadings and evidence has traditionally contributed to the efficiency of arbitration, the use of technology in all aspects of communication has only increased the efficacy of arbitration during the COVID-19 pandemic. Ongoing arbitration cases have benefited from the use of different videoconferencing platforms, such as Zoom, Microsoft Teams, and Google Meet, allowing lawyers, arbitrators and witnesses to participate simultaneously in arbitration hearings without being in the same room.
Future-Proofing Dispute Resolution in B.C.
Arbitration is well positioned to adapt to technological measures and implement innovative practices in order to make dispute resolution a cost-effective, speedy, and efficient exercise. The current protocols in place for permitting electronic evidence at trial can be unwieldy and are applicable only when the parties agree to this format well in advance of trial or when the court makes an order to this effect at a pre-trial conference. With arbitration, parties are more readily granted the opportunity to dispense with traditional hearings in favour of teleconferences or video conferences.
Parties Gain Flexibility
Both litigation and arbitration in British Columbia are governed by procedural rules dictating how the dispute resolution process will unfold. Unlike litigation, however, only arbitration permits the parties to change those procedures by consent in order to best suit the particular circumstances and to facilitate a fair and timely outcome. One of the ways in which arbitration proceedings differ from court litigation is that practices can be tailored to meet the particular needs and preferences of the parties involved. It is this flexibility that has allowed virtual hearings and remote discoveries to proceed in arbitrations with so much success.
Arbitration will never replace litigation as both serve critical functions in our society. With that in mind, it is important that litigants make informed decisions when choosing the right forum to resolve their disputes.
The global COVID-19 pandemic has demonstrated that arbitration has a greater capacity than the British Columbia Courts to implement technological advancements, adapt to ever-changing circumstances, and institute flexible procedures to achieve resolutions. In this current climate of change and uncertainty, parties to commercial contracts should consider inserting a mandatory arbitration clause into their agreements while current litigants should consider the advantages of referring their existing dispute to arbitration for a quicker and more cost-effective resolution.
If you have any questions, please contact me at dlucas@kornfeldllp.com or call me at (604) 331-8306.
