Line of Business
Settling technology disputes out of court better and cheaper
Arbitration is a great alternative method to settle technology disputes - and it's usually cheaper and faster than litigation.3/24/2008 11:00:00 PM By: Grant Buckler
See you in court.
It's a phrase nobody likes to hear, and one that should be used less in the technology sector, say lawyers with experience in arbitration and mediation.
These alternative dispute resolution mechanisms are often cheaper and faster than litigation, make it easier to keep disputes confidential, and allow the parties to choose someone who understands technology to help resolve their differences.
But the time to think about alternative dispute resolution is when you sign a contract, not after problems arise.
Contracts should specify how to resolve disputes and lay out the ground rules. “Once the dispute arises it's harder to agree on things,” says Barry Leon, senior partner at law firm Torys LLP in Toronto.
Arbitration is an alternative to litigation. Mediation is non-binding, so it can be a first attempt at resolving disputes, to be followed by either arbitration or a court date if it fails.
Tate McLeod, a lawyer with law firm Ogilvy Renault LLP in Ottawa, offers a handful of reasons for choosing arbitration over litigation. “Probably the most often cited advantage,” he says, is the ability to choose arbitrators with expertise in the subject of the dispute.
While parties in litigation can't choose their judge, choosing an arbitrator knowledgeable in technology law can save time and may lead to a better decision, McLeod says.
Leon offers a technology analogy. “You don't have to download the program. The arbitrator comes with it installed.”
This is one benefit of arbitration, but not the only one, and some say not even the biggest one.
Colm Brannigan, a Toronto-based arbitrator and mediator and co-chair of the Technology and Intellectual Property Section of the Alternative Dispute Resolution Institute of Ontario (ADRIO) maintains confidentiality and speed are even more important.
“Companies are dealing with time-sensitive products or ideas or projects,” he says, “where if you go to litigation, your trade secrets are going to be out there.”
You can keep some aspects of a court case private, McLeod notes. For instance, parties can appeal for sealing orders. But there is no guarantee such orders will be granted and no way of knowing when you begin litigation what you'll be able to keep out of the public eye.
And with arbitration or mediation it's usually possible to keep even the existence of a dispute secret.
Arbitration can be faster thanks to arbitrators with subject-matter expertise and because parties can agree on expedited procedures, Leon says. Whereas court rules are fixed, arbitration procedures can be defined in advance to limit the amount of information and paperwork involved.
Page Navigation 1) An arbitrator knowledgeable in technology law can save time and may lead to a better decision.2) With arbitration or mediation it's usually possible to keep the existence of a dispute secret.
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