Do Your Own Arbitration

By S.H Keshavjee

Included is a treatise on the origins of this process, the different kinds of alternate dispute resolution processes and the advantage over State Controlled Dispute resolution processes- The courts.
He has also included reference to “the Power of an apology”, discussed online ADR systems, and discusses its origins in Islam, a religion that has perked the interest of the west, of a religion that is so widespread and yet so misunderstood..
More important he has tried to expound a more altruistic view of dispute resolution using apt “Words of wisdom”. He tries to show that as Shakespeare put it “ to obtain a pound of flesh”
Or to do it for the sake of revenge is not the right way to go.
Arbitration is a more formal, involved ADR process which whilst gaining importance is the least understood process.
He endeavours to make arbitrators or parties to an arbitration out of novices with the least amount of effort.
He endeavours to demystify this creature called “Arbitration”
His appendix not only contains sample agreements, rules etc but has sample arbitration clauses, not only for regular contracts but for Company constitutions, wills, and marriage contracts.

• Language: English
• Publisher: Trafford Publishing
• Release date: Feb 28, 2012
• ISBN: 9781490791142

S.H Keshavjee

The author had studied law with the University of London, was a member of the Institute of Arbitrators of UK, followed by becoming a certified arbitrator in Canada. Not only has he conducted arbitrations but has written several articles and conducted training seminars on this subject.

Book preview

Copyright 2012 Sadick H Keshavjee LLB(Hon.) TEP, CPS,(K) CERTIFIED ARBITRATOR.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the written prior permission of the author.

ISBN: 978-1-4669-1612-8 (sc)

ISBN: 978-1-4907-9114-2 (ebook)

Trafford rev. 02/20/2012

www.trafford.com

North America & international

toll-free: 1 888 232 4444 (USA & Canada)

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This book is dedicated to the following, who, in one way or another, helped in my growth. My daughter Naveeda, and my son Nadeem, my late mother Sakina, my late wife Nuri, my sister Zarina, and my childhood friends, Dr. Sultan Kassamali and Dr. Mohamed Keshavjee. To me they are all alive even if in spirit

Table of Contents

PREFACE

CHAPTER 1 - THERE AN ALTERNATIVE TO THE STRESS OF ‘HAVING YOUR DAY IN COURT’?

CHAPTER 2 - HOW THIS CONCEPT GREW - FROM HUMBLE BEGINNINGS

CHAPTER 3 - IS ARBITRATION THE ONLY ALTERNATIVE TO THE COURT SYSTEM

CHAPTER 4 - … AND THERE ARE DIFFERENT SPECIES OF ‘ARBITRATION’

CHAPTER 5 - HOW DO YOU GET THE BALL ROLLING IN ‘RIGHTING A WRONG’.?

CHAPTER 6 - ‘THE ARBITRATOR’ - DEMISTYFYING THIS CREATURE

CHAPTER 7 - PUTTING PEN TO PAPER … . WHO DID WHAT TO WHOM

CHAPTER 8 - WHAT YOU NEEDED TO KNOW ABOUT THE HEARING BUT WERE UNWILLING TO ASK

CHAPTER 9 - EVIDENCE FOR THE NOVICE

CHAPTER 10 - HEARING OF THE CASE - THE BIG DAY, DEPENDING ON WHAT COLOUR LENS YOU SEE THIS

CHAPTER 11 - EXAMINATION AND CROSS EXAMINATION (X)

CHAPTER 12 - THE AWARD - WHO GETS WHAT AND WHY

CHAPTER 13 - CHALLENGES TO THE AWARD … . BACK TO SQUARE 1?!

CHAPTER 14 - … NEVER HAVING TO SAY YOUR’E SORRY’

CHAPTER 15 - SOME ADMINISTRATIVE LAW SALAD TO DIGEST

CHAPTER 16 - SOME CANADIAN STATUTE LAW GOVERNING ARBITRATION TRIBUNALS - JUST SALAD DRESSING

APPENDIX 1 - SAMPLE ARBITRATION AGREEMENT

APPENDIX 2 - ARBITRATION PANEL MEMBER’S NOTES

APPENDIX 3 - MEDIATION/ ARBITRATION AGREEMENT (COMBINATION)

APPENDIX 4 - Short form procedure RULES

APPENDIX 5 - SAMPLE COMMUNITY ARBITRATION RULES

APPENDIX 6 - SAMPLE ARBITRATION CLAUSES

CREDITS

PREFACE

I have often, in my professional capacity, been told by parties to a dispute or even those involved in resolving such disputes that ADR in general, and Arbitration is such a daunting task and seems to be meant only for lawyers.

Whilst hiring a lawyer who has years of training is the ideal solution, in practical terms will this cost a lot of money (one has to pay for this expertise). More important one does not have to be a lawyer to be an arbitrator, be a party in an arbitration or assist such party.

In view of this I have found it appropriate to write this Do it yourself publication.

In addition I have come across lots of parties aiming not for justice but just revenge. My philosophy has been fight legally morally and ethically for your rights but to quote Norman Vincent Peele Leave revenge to God or the universe whatever you conceive him or her to be. I have interspersed such mundane but informative chapters with Words of Wisdom I am looking forward to my favourite legal fictional thriller, John Grisholm, to write a novel based on arbitration where (in his usual brilliant way, we sympathise with the good guys).

I have endeavoured to show in the first chapter, that ADR in general and arbitration in particular is an alternative to the court. In the next chapter I show the historical development of this system followed by an outline of different forms of arbitration.

Then comes the meat. How an arbitration starts, the role of the arbitrator (and this includes the arbitration panel comprising more than one person).

After this, I discuss the written submissions emphasising all along that this process does not need rocket science.

After this comes a discussion on the hearing date and what happens here.

After this comes a brief outline on evidence 101 for the novice.

Of course next comes the award. A discussion follows as to what an award should look like

And how it was arrived at. Unless it is properly made this award can be set aside. So, logically the next chapter discusses challenges to the award.

I then discuss the power of an apology. An interesting concept.

What follows are some principles of administrative law governing tribunals and thus arbitrators. Then comes a brief table of statutory provisions governing arbitrations in 3 of what seem the busiest Provinces in Canada.

WORDS OF WISDOM

"Make me the instrument of thy peace

Where there is hatred let me sow love

Where there is injury, pardon

Where there is doubt, faith

Where there is despair, hope

Where there is darkness, light

Where there is sadness, joy" - Gary Zukav

CHAPTER 1

THERE AN ALTERNATIVE TO THE STRESS OF ‘HAVING YOUR DAY IN COURT’?

The civil court, which in effect is a ‘state controlled dispute resolution system can be one of the most tension packed event in one’s life. But there are alternatives and now some eminent court judges are taking to ADR.

1. What is ADR (Alternative/Appropriate Dispute Resolution)?

• ‘A term f or processes designed to settle disputes without formal trials’.

• ‘Replacing adversarial trials as a method of choice in resolving disputes’

• ‘To settle out of court is an attractive option for many and it is certainly the best approach and the results are generally fair’ (Linda Dranoff ‘Everyone’s Guide to the Law’).

2. What is Arbitration?

• ‘Arbitration is a procedure in