Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A u g u s t 2 0 1 4 47 LEgaL rEport/aDR C ompared to the combat of litigation, alternative dispute resolution might seem to some like a pleasant alter- native. But mediations, arbi- trations, and their various brethren come with pitfalls of their own that can ensnare an unwary lawyer. Whether it's your first time working through a labour mediation or you're a jet-setter representing global multinationals, make sure to avoid some of the most common errors that plague ADRs. not choosing your judge Depending on what sort of process you're going into, you may have the option of choosing your arbitrator, or at least the chairperson of a three-person panel. In many ways, arbitrators have more power than state-appointed judges; they can't be appealed or corrected. And what lawyer wouldn't jump at the chance to appoint their own? Surprisingly, many pass on the opportunity. In 2012, only 7.8 per cent of the chairpersons of arbitration panels at the International Chamber of Commerce were appointed by the parties. The rest were chosen either by the co-arbitrators (52.2 per cent) or appointed by a court (40 per cent). The reason for such a high number of deferrals is parties often feel they can't come to a consensus with their opponents and decide to leave the decision up to others. Big mistake. Speaking at the International Arbitration Today conference in Toronto, a panel of people experienced with the arbi- tration process were unanimous: If you can, make the choice, even if that means getting in the muck with your opposing party. Ulrich Hagel, senior expert dispute res- olution with Bombardier Transportation GmbH in Berlin, says it's obvious parties should choose their arbitrators. "The power to decide the case was delegated, the pro- cess is subject to party autonomy and thus, yes, the parties want to select their arbitra- tors, otherwise they would have chosen court litigation," he says. So how do you go about choosing an arbitrator or chairperson when you know your opponents are likely to shoot down names you propose? Christopher Seppälä, a construction arbitrator with White and Case LLP in Paris, recommends first nego- tiating what professional characteristics both parties are looking for, and then cre- ating a shortlist of people who meet those qualifications. And make sure to consult with any co-arbiters on a panel, since their primary job will be to sway the chairper- son. But be careful if they make any sugges- tions themselves. "You don't want to reject a co-arbitrators suggestion because you could alienate them," he says. And if there are party-nominated arbi- trators on a panel, José Ignacio Astigarraga, senior vice chairman of Miami-based bou- tique litigation firm Astigarraraga Davis, said to make sure they at least appear unbiased, otherwise they won't have any credibility within the panel. He quoted Martin Hunter, a top U.K. arbitrator, to describe the perfect selection. "Someone with maximum pre-disposition towards micK coulaS Avoid common ADR pitfalls Experts offer up their tips for avoiding some of the most common errors of out-of-court processes. by arShy Mann

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