Farmer v. Farmer*: Nine Easy Steps to Being a Better Arbitrator

  1. Make sure your equipment is working. An ‘honest’ admission about equipment failure leading to defective reasons is not the kind of honesty you want to be known for.
  1. Avoid stark characterizations of the nature of the evidence. Doing this makes it look like the arbitrator either did not understand the evidence or did not take the time to consider it.
  1. Address all material evidence in appropriate detail. Failure to do so may be an error of law that can lead to a successful appeal.
  1. If a choice of legal test is required, explain that choice with specific reference to the evidence. Referencing legal tests in general terms can lead to a finding of an appealable error of law, or an error of mixed fact and law.
  1. Do not use a clarification or explanation of an award to justify an omission in the first award as opposed to an articulation of the reasoning behind the award. This can offend the intelligence of parties and counsel, and exacerbate the losing party’s sense of injustice.
  1. Take the time you need to write your award. Three months is not an undue delay in releasing an arbitration award in a complex matter. On average, budget two hours of analysis and writing for every hour of hearing time.
  1. Know the rules of hearsay and their exceptions, and know the process for addressing them. No arbitrator wants to read an appellate court characterize their approach to hearsay evidence as ‘unfortunate’.  And always hold a voir dire to determine admissibility of hearsay. The decision has a good summary of how to do this at paragraphs 171-193.
  1. Do not intervene inappropriately in the examination of a witness. Do not comment on the merits of legal arguments during the hearing, particularly before all the evidence is complete. If there is an appeal, your conduct will be analyzed— in detail, in writing and in many blogs and articles thereafter— if you mismanage your arbitration process.
  1. Arbitration is sold as a faster, cheaper, better, confidential process. The arbitrator’s job is to deliver on that promise or not take the case at all. How the arbitrator conducts themselves throughout the process and how well they write their awards largely determines party satisfaction with both the process and the outcome.

All arbitrators can make errors that lead to appeals. But there is a difference between making procedural errors that cause parties to feel that they did not receive due process, and simply being wrong in law.

By following the tips above, arbitrators can reduce the chances of making procedural errors.

Farmer v Farmer, Finlayson J,  ONSC 5913

About Hilary Linton

Hilary Linton is a Toronto lawyer, an accredited family mediator, an experienced family arbitrator and an alternative dispute resolution trainer.