Law Times

PAGE 12 FOCUS December 7, 2009 • Law Times Arbitration popular in slumping economy BY DARYL-LYNN CARLSON For Law Times litigation might instead turn to alternative dispute resolution because it's less expensive. Yet depending on the medi- P ator, hourly rates can run from $120 to more than $300. As a result, there hasn't necessarily been an across-the- eople might think that in tough economic times, clients contemplating board surge in business for me- diators during the most recent economic downturn. "My experience is showing that in a recession, there is a greater reluctance to mediate due to the cost of mediators," says Murray Miskin, a litiga- tor, arbitrator, mediator, and ADR trainer at ADR Works in Whitby, Ont. "I'm hearing quite often that both companies and in- dividuals with limited budgets are deciding that it's just not worth the trouble or money to mediate. "Over the past few years, we're looking at much bigger bills for mediators, and I think lawyers are being more careful on what fi les they will mediate on." But it's not that there's nec- essarily been more litigation either. Rather, there are likely prospective clients involved in family situations, small-business disputes or other less complex matters who would typically seek mediation but aren't doing so because of the cost. For his part, Miskin fi nds the trend unfortunate. "I be- lieve that mediation is an ef- fective way of saving money on litigation if it's successful because most cases in my expe- rience that go to mediation are settled," he says. "Th e process of mediation I fi nd is helpful also, even if the case doesn't settle, because all of the parties get to know each other and there's always a chance that the case may even be settled down the road." Th ese days, however, Miskin is keeping busy with a surge of arbitration matters, many of which deal with commercial and corporate disputes. But he has noticed a marked increase in clients who are re- questing arbitration by just one ADR professional rather than a panel of three, another indication that companies are closely watching their bottom line. Ontario's Arbitration Act Canadian Patent Reporter provides that if an agreement within a contract doesn't spec- ify the number of panellists, parties can opt to have one ar- bitrator only. For arbitrations between international parties, agree- ments often mandate a panel of three in order to conform to the rules set by bodies such as the International Chamber of Commerce. But for the most part, the companies that use arbitrations presided over by a panel are multinational corpo- rations. Still, during a slower economy, parties embroiled in a dispute tend to be reluctant to launch litigation in the courts where the costs can be signifi cant. So, it can be a boon to third- party negotiators of all exper- tise during a recession. Barry Leon, a partner in Let the experts help you to narrow your search and save you research time. Canadian Patent Reporter has been Canada's leading intellectual property law report since 1942. This renowned resource, available online and in print, includes precedent-setting intellectual property law judicial and board decisions from across Canada. This publication has a tradition of providing practitioners with the leading decisions on patent, industrial design, copyright and trade-mark law. Topical catchlines in bold print show the key issues involved. Expert case selection and headnoting are a tradition with Canadian Patent Reporter. Weekly updates via email and in print, plus an annual cumulative index volume, ensure that this publication continues to be the prime reference source for intellectual property case law. Includes eReports (weekly electronic pdf version) Stay current as cases are issued with eReports e-mailed weekly to your desktop, with topically indexed case summaries linked to the full text judgments. the international arbitration group at Perley-Robertson Hill & McDougall LLP in Ottawa, says the use of ADR instead of litigation has experienced steady growth in Canada over the past 10 years. He suggests as well that the economic downturn has in fact fuelled more activity. "Th e reason is, and this economic downturn is diff er- ent than those in the past, all around the world it's the same theme: people aren't litigating issues through to conclusion as they did in past recessions and they are making more use of ADR in many cases," says Leon. He also says that corporate Order your copy today! Full service subscription (parts and bound volume) • $399 • 9 vol/yr P/C 0325094999 • ISSN 0008-4689 counsel who are increasingly having to resolve issues that come to their attention with fewer resources are turning to ADR to cut costs. "I think the reason is that corporate counsel are now driving the bus. In the past, you might not have had people who understood the [ADR] process or are under the same cost pressures as they are to- day. "So corporate counsel un- For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CPR (LT 1-2x4).indd 1 4/22/09 12:02:21 PM LT0427 derstand litigation and alterna- tive dispute resolution and they have limited budgets. So they are looking at cases and have to develop a strategy based on the merits and objectives, and a lot of times that means try- ing to fi nd a way to resolve the case without spending an ex- orbitant amount of money on litigation." LT Fourth Series (Volumes 1 to 65): Edited by Glen Bloom, Osler, H Founding Editor: Gordon F. H First, S Edited by Marcus Gallie, Ridout & Maybee LLP econd and Third Series: Edited by Gowling, Strathy & H enderson, C.C., Q.C., LL.D. oskin & H arcourt LLP enderson

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• Bar Liability
• Cadillac Treatment
• Focus On ADR/Mediation