Pre-arbitration preparations are key to Family Arbitrators, by (retired Justice) Cliff Nelson
Most family arbitrators would agree that the pre-arbitration conference, where matters relating to the conduct of the hearing are discussed, is the key to a successful process. As a number of you who will be conducting arbitrations have not had a great deal of experience in presiding over hearings, you will find a recent short endorsement in the case of Barker v. Barker 2019 ONSC 2171 helpful. This case is about trial management in a complex matter but the considerations can be applied to a less complicated, multi-issue arbitration hearing. Justice E. M. Morgan canvasses such matters as:
- Requests to Admit
- Statement of Agreed Facts
- Document Briefs
- Use of Affidavit Evidence
- Limitations on Time for Cross-examination
- Use of Discovery Transcripts at Trial
- Expert Evidence, Reports and Summaries
- Written Submissions
While none of the points listed are fleshed out, they still provide a handy checklist, useful for the conduct of any hearing, complicated or not. My experience has been that judges at a trial-management conference will canvass most of the above subjects and others, including limitations on the length of the hearing by vetting witnesses’ evidence.
The pre-arbitration conference also gives everyone an opportunity to decide how to proceed with experts. Decisions can and should be made with respect to qualifications and the relevance of the opinions provided.
The type of pre-arbitration hearing I am discussing should obviously be conducted close enough in time to the actual hearing so that counsel and the parties know the witnesses that they will call.
I expect many of you who conduct arbitrations review the hearing process with counsel, and cover some or all of the points raised in Baker v. Baker. As we all know, the success of the hearing depends on the pre-hearing preparation. It might be a good idea to have the court’s comments in Baker in your toolkit.
Lorne Wolfson has adapted, from trial management, a helpful “Pre-Arbitration Conference Form“, which I expect has been seen and utilized by many of you.