Must they be required to testify? Arbitrators in Court - Dispute Resolution Journal - Vol. 53, No. 2
Norman M. Fera
The author is a partner in the national law firm of Lang Michener in Ottawa, Ontario, Canada, and is on the roster of courtconnected mediators in the Ontario Court (General Division) at Ottawa. He has written numerous articles on alternative dispute resolution and is the co-author of two leading legal textbooks.
Norman Fera’s article raises the question of when, if ever, it is appropriate to require an arbitrator to give testimony in an appeal of his or her decision. While the practice is not uncommon when an award is up for judicial review, Fera advances a strong argument as to why arbitrators should be accorded the same deference as judges and excused from such proceedings.
It seems inconceivable that a judge of first instance should or would be called as a witness in an appeal or review of his or her own decision. From a practical point of view, the judicial system, already slow and cumbersome, would in short order become gridlocked. Apart, however, from such mundane considerations, there must be sound public policy reasons for refusing to countenance such a practice. If so, then why do arbitrators1 not enjoy the same deference?2