Canadian Lawyer

48 A u g u s t 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m my client, but with minimum appearance of bias." Confusing a boardroom for a courtroom There's a reason your client chose ADR instead of litigation, so why would you act like you're in a courtroom? "A lot of arbi- trations don't actually capture the poten- tial benefits because the parties and/or the arbitrator treat it as if it were just a trial but in a boardroom," says Stephen Morrison, a Toronto-based lawyer and arbitrator with Cassels Brock & Blackwell LLP. If you want to reach a successful out- come in an ADR proceeding, you'll have to find ways to maximize the unique effi- ciencies and effectiveness of arbitration. "Arbitration really doesn't hinge on prin- ciples of law," says John Sanderson, co- founder of Sanlaing Dispute Resolution Ltd. in Vancouver. It's not useful for lawyers to obsess over obscure points of law, espe- cially in labour arbitrations or other situa- tions where the emotional stakes are high, he says. "You're dealing much more with raw emotion, and as lawyers, we very often get caught up in the legal aspect of that." Instead, Sanderson says lawyers should ask questions that might lead to the parties understanding the broader issues. How did this situation arise? What's the background? Who said what to provoke this kind of reaction? "It's not so much a question of a nice, clean, clear legal position," he says. "It's messy and difficult to work with. So your sensibilities have to be somewhat different than in the courtroom." Sanderson says the only way to really figure out the unique environments of ADR is through practice. "It flows naturally from the experience and knowledge that people in the dispute resolution world learn." Being too formal or too informal An ADR hearing may not be as formal as a courtroom trial, but that doesn't mean you can treat it like a high school debate society. "We still pay attention to rules of law and rules of evidence and you've got to know those," says Catherine Zuck, a labour arbitrator and mediator in Saskatoon. "You just can't wander in on your first week of law school and think you're going to do a good job at it." Zuck concedes when she first started working in the field, everyone would smoke and drink coffee during hear- ings, but times have changed. But while some lawyers may be too informal, be careful of swinging too far in the other direction. "Coming in too formal puts the other side's hackles up, especially if you've got a three-piece, navy-blue-suit-lawyer dealing with a union rep," says Zuck. "The three-piece- suit lawyer is jumping up making all sorts of objections and the other side is getting flustered and mad." If you're arguing a commercial dispute between two multinationals, it's smart to stick to the mores of a courtroom. But if it's a labour arbitration or a small-time media- tion, it might be best to leave your best suit, along with any litigious attitudes, at home. LEgaL rEport/aDR Practical. Relevant. Accessible. OSGOODE PROFESSIONAL DEVELOPMENT CONTINUING LEGAL EDUCATION SEPTEMBER Mediation Advocacy September 15 - 16, 2014 Webinar Series - Key Issues in Privacy and Information Management 2014 September 16 - December 16, 2014 (8 Sessions) The Osgoode/FCO &HUWLoFDWH(VVHQWLDOV for Ombuds Starts September 22, 2014 Canadian Securities Law and Practice September 22, 29 & October 6, 14, 2014 (Evenings) Managing, Mediating DQG/LWLJDWLQJ(VWDWH Disputes September 24, 2014 10th Personal Injury Law & Practice September 30, 2014 OCTOBER 2nd Managing Complex ,VVXHVLQ(VWDWHDQG Tax Planning October 1, 2014 The Comprehensive Guide to Handling a Family Law Case October 2, 2014 Osgoode's &HUWLoFDWH in Class Actions Starts October 9, 2014 The 18th Annual Course on Written Advocacy October 17 - 18, 2014 Secured Lending and Debt Finance October 20 - 21, 2014 Partnerships, Limited Partnerships and Joint Ventures October 21, 2014 10th Administrative Law and Practice October 23 - 24, 2014 NOVEMBER Small Claims Practice and Procedure November 7, 2014 Recent Developments and Complex Issues in Child and Spousal Support November 13, 2014 11th Intensive Wills DQG(VWDWHV:RUNVKRS November 13, 20 & 27, 2014 (Evenings) Osgoode's &HUWLoFDWHLQ Advanced Procurement Law and Practice: Major Projects and Tendering Starts November 17, 2014 Perfect Your 336$6NLOOV November 20, 2014 Osgoode's &HUWLoFDWH in Construction Law Starts November 24, 2014 A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING OSGOODE PROFESSIONAL DEVELOPMENT, 1 DUNDAS STREET WEST, SUITE 2600, TORONTO To Register: www.osgoodepd.ca Or Call: 416.597.9724 or 1.888.923.3394 Or Email: RSGUHJLVWUDWLRQ#RVJRRGH\RUNXFD Osgoode Professional Development has been approved as an Accredited Provider of Professionalism Content by The Law Society of Upper Canada. Priority Service Code: 14-99CL ntitled-1 1 14-07-21 8:34 AM

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