Weighing The Advantages Of Arbitration vs. Litigation In


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The choice between arbitration and litigation as a means of
resolving construction disputes really depends on the objectives of
the parties involved. The opportunity for private dispute
resolution can be appealing to those wanting to keep out of the
public eye, while the availability of multiple levels of appeal may
be of interest to those seeking litigation. Weighing the pros and
cons of arbitration versus court proceedings was among the topics
covered during Osler’s Construction and Infrastructure
Disputes: Specialized Practices and Procedures webinar, the first
in a series. Presenters for this webinar were partners Roger
Gillott, Melanie Gaston and Carly Fidler, Litigation, and Lia
Bruschetta, associate.

With the private dispute resolution aspect of arbitration,
parties can avoid the publicity that often comes with court
proceeding decisions. Also with arbitration, the parties can choose
the decision-maker, with the prospect of selecting someone with
strong industry knowledge and who has a good understanding of the
roles of the players involved. Generally there is also more
procedural flexibility with arbitration.

A successful arbitration procedure depends on several factors,
including the strength of the original arbitration clause in the
contract, the negotiation of an effective procedural order with the
arbitrator and the various parties involved, and the
arbitrator’s ability to manage the procedure along the way. The
original clause has to be properly drafted, and the arbitrator
needs to make the tough calls, and to make them early.

The next webinar in September will focus on the common law duty
of good faith in construction disputes.

View the full webinar

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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