Despite some initial trepidation, lawyers arbitrating construction cases by teleconference have found the “new normal” to be efficient and cost effective.  But the inconveniences associated with face-to-face arbitrations are minuscule compared to the costs and risks associated with the document disclosure process.  We need a “new normal” way to request and produce relevant documents in a virtual process.

 

It’s time to consider a standard, simplified disclosure rule that takes advantage of available technology to improve the outcomes of construction arbitration.

 

In our experience, many of the pain points associated with the exchange of documents could have been avoided had the parties adopted a mutually agreeable framework at the outset of a matter, and prior to the review and exchange of productions.

 

Today parties usually work with one of several highly regarded industry-standard arbitration rules.  But when it comes to the document disclosure provisions, lawyers encounter various difficulties.  Our research pointed to these main concerns:

 

  1. The rules about disclosure were perceived as giving one party an unfair advantage;
  2. The rules either minimized the complexity of document exchange or created unnecessary complexity;
  3. The rules were outdated, because they were based on a foundation of the exchange of paper documents.

The proposed Heuristica Disclosure Rules for Construction Arbitration are designed to provide meaningful disclosure while:

 

  1. ensuring a level playing field;
  2. avoiding undue burden and cost to the parties;
  3. simplifying and expediting the disclosure process, and
  4. making use of available technology.

Rather than introducing unfamiliar concepts, the proposed Heuristica Rules are consistent with existing international and Canadian rules, standards and best practices.

 

Let us know what you think by sending an email to info@discoverycounsel.ca.

 

  • Would you be open to discussing such Rules?
  • Do the Rules effectively address your concerns about disclosure?
  • Are there other considerations we may have missed?
  • Is there anything about the proposed Rules that you would change?

 

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