Unlocking Speed and Sanity: The Arbitration Advantage
If you're still tethered to the sluggish pace of our court system for wrongful dismissal matters, it's time to break free. The endless delays, inefficiencies, and unpredictability in court are doing no favours for you or your clients. It's time to consider a game-changer: arbitration.
Last week at the TFK holiday gala, I reminded many of you that I am trying to grow my ADR practice and I asked about the use of arbitration in wrongful dismissal cases. The response was a consistent "No"; let's change that.
We've all heard about the benefits of arbitration, but let's dive into the essentials:
1. Need for Speed
Forget about court backlogs and scheduling nightmares. With arbitration, you set the pace. The parties and the arbitrator get on the same page about a timeline, and guess what? The arbitrator is answerable to you.
One of the objections that I often hear is that this is appealing to the plaintiff bar, but not to those acting for the defence. While defendants are not usually as concerned about moving things along swiftly, some of the defendants that I act for like to get these claims off of their books and be done with the individual in question. Furthermore, the other advantages set out below apply equally and in some cases, are even more beneficial for the defendant.
2. Hush-Hush
Confidentiality is key, especially for defendants wanting to avoid airing their dirty laundry in public.That is particularly true if there are issues that could create troublesome precedents, such as a decision on the entitlement to post-termination compensation like bonuses, commissions, or incentive payments. If a large company is trying to rely upon a clause which requires “active employment”, they may not want an adverse public decision, which could open the floodgates for additional claims.
3. Efficiency Over Inefficiency
We often talk about the lengthy delays in getting to trial. We should also consider the inefficient use of court time. While a typical court day may be scheduled from 10:00 AM to 4:30 PM, the reality is that with delays and breaks, it often translates into only a couple of hours of actual hearing time. In arbitration, the arbitrator works for you and you alone. No juggling multiple matters. Start on time, keep to the schedule, and no time wasted.
4. Tailor-Made Justice
Unlike the one-size-fits-all court process, arbitration lets you customize. No need for unnecessary steps in a straightforward case, and full-blown hearings for complex issues. It's your call, literally.
5. Choose Your Judge
No more rolling the dice with a judge unfamiliar with employment law after years of litigation. In arbitration, you handpick your judge, reducing the inherent unpredictability in the court process.
6. No Appeals Drama
Decide on appeal rights at the outset. If it's a straightforward wrongful dismissal, skip the appeal drama altogether; most employment disputes lend themselves to finality versus appellate rights. In most cases, the arbitrator's decision is final, providing clarity and closure.
Med-Arb: One Way or Another…
Ever try med-arb? It's the best of both worlds. Reach settlements with a mediator's touch, or let your mediator put on their arbitrator’s hat and lay down the law for finality. No more indefinite delays; the case ends on a set date.
In the simplest scenarios, imagine setting up a scenario where, if mediation falls short, the parties dive into final offer selection – also dubbed "baseball arbitration" – right at the day's end. The entire matter wrapped up in a single day.
Agreeing to med-arb is not just a tactic; it's a strategic move toward a swift, conclusive resolution.
Pith and Substance
I won't claim arbitration is the golden ticket for every case, but it's a game-changer in many employment disputes. I encourage everyone to not dismiss arbitration out of hand. Particularly as we move into 2024, the court system is not a viable way to address most employment disputes. Arbitration, mediation, and med-arb provide solutions that can greatly benefit your clients; you owe it to them to at least consider the alternatives.
Stuart Rudner is an arbitrator and mediator. For more information about Rudner ADR or to check availability, click here or contact Janis Buckley at 416.864.8504 or janis@rudnerlaw.ca.
