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 49 not knowing your audience Arbitrators and mediators have more varied backgrounds than judges, so it's essential to get to know the people you'll be pre- senting before. Zuck says when she used to represent clients at ADR proceedings, she become fairly familiar with the arbi- trator and mediators that worked in her area. "Some of them were manly men who decided things by the seat of their pants and what their gut told them and others were really logical thinkers," she says. "So I'd tailor my case to whichever one I had." And make sure you know if they are experts in the subject matter. "Sometimes the person that's doing the hearing is not familiar with the field," she says. "I know a lot about health care, but I don't know how much I'd know about potash mines." This becomes even more crucial if the people you're presenting in front of aren't lawyers. "If you go in there thinking as a lawyer, and are used to conducting cases like a lawyer, that might not really work for a bunch of nurses," says Zuck. not showing up The most important piece of advice Morrison has for parties involved in ADR comes down to two words. "Show up." In his experience, decision-making par- ties not being at a hearing is the No. 1 cause of failure and why many mediations don't result in settlements. "As the media- tor, it's enormously frustrating and makes my job substantially more difficult if I don't have face-to-face interaction with the decision-maker on one or both sides," says Morrison. Arbitrators use various forms of "art and science" to bring about a resolution that would satisfy both parties, something that can't be accomplished through a proxy. "A lot of what a good mediator does is watch and observe," he says. "You're watching the person, you're watching the body language, you're listening to the responses, you're constantly reacting to the feedback you're getting, both verbal and non-verbal." Sometimes decision-makers need a reality-check from an independent neutral third party evaluating their case, some- thing a person's lawyer is ill-suited to do. "There are lawyers who can tell their client exactly what their client needs to hear," says Morrison, "but there are other lawyers who in order to maintain or preserve a relation- ship might be more inclined to tell their cli- ent a little more of what he wants to hear." Not only does it lead to worse outcomes, but Zuck says, if parties aren't present, the proceedings take longer, costing more time and money. "That person should have been at the table making split-second decisions and we could get it finished that day," says Zuck. Morrison says if you can't get the deci- sion-maker in the room, the next best thing is to convince them to vest you with the authority to do what you think is best and make decisions on the spot. But at the end of the day, the ultimate decision-maker actually being present is always best. "If par- ties are going to invest substantial amounts of money between their own lawyer's fees and the mediator's fees, show up." What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES ntitled-1 1 13-09-16 2:53 PM www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" ntitled-1 1 13-12-04 9:49 AM

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