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Behavioural guidelines are essential in commercial arbitration. They allow the legal profession do its part in providing the business community with an efficient and cost-effective dispute resolution mechanism.

As an arbitrator, I advise counsel at the first procedural meeting that they will not only assist the process, but also their clients if they adopt what I call the '4 Cs': communication, cooperation, civility and commitment. These guidelines are even more important in the arbitral process than in court.

The arbitral tribunal takes its authority solely from the consent of the parties. An arbitrator has few powers to sanction inappropriate behavior, and the Rules of Civil Procedure have no application. The complete cost of the process, including the fees paid to the arbitrators, are borne by the clients. They may well have entered into the arbitration agreement believing that the process would be less formal, more expeditious and less costly than a court proceeding.

The responsibility to deliver on this promise, for the most part, lies with the legal profession.

Communication

If commercial arbitration is to deliver on the twin promises of efficiency and cost effectiveness, counsel should, as soon as possible, communicate with each other to determine what can be agreed on and what must be put to the arbitral tribunal. The more the parties and counsel can agree on procedural matters, the less time will be spent with the arbitral tribunal.

Surprisingly, counsel often appear before me at the first procedural meeting without having spoken to each other beforehand. What is even more of a concern is that when counsel review the usual list of procedural matters, they readily agree on it.

All of this could have been done with substantially less tribunal involvement—but rather than talking between themselves, everything is brought to the tribunal. What counsel must remember and become more sensitive to is that every time the tribunal is engaged, it costs money.

Cooperation

Counsel should be able to agree on procedural matters and scheduling. In a perfect world, no procedural motion should have to come to the tribunal for determination.

One of the hallmarks of arbitration is that it is consensual. The parties agree to use this method of dispute resolution in an effort to resolve business differences in a less formal setting than the courtroom. Aggressive procedural posturing for tactical purposes is seldom effective and it costs money.

It may also aggravate the arbitral tribunal, who are well aware of the tricks of the trade. Counsel score more points with the tribunal and better serve their clients by being cooperative on procedural matters, while hanging tough on substantive legal points.

Civility

One of the greatest wastes of time at a hearing occurs when the tribunal has to listen to counsel argue between themselves over who did what to whom, or whether a particular hardball trial tactic is or is not appropriate.

The hearing is not a court trial. Usually a fixed number of days have been set aside for it, and adding additional days to a hearing schedule due to the behavior of counsel is a waste of time and money. While some clients may expect a 'scorched earth policy,' it is up to counsel to educate them that the tribunal will not tolerate such behavior, and that sticking to the relevant legal issues and arguing those issues in a civil manner is in the client’s best interest.

Commitment

A commitment to the arbitral process is arguably the most important of the 'C’s.' By agreement, the parties have decided that their dispute should be resolved by arbitration. Had they wished all the trappings of a court proceeding, they would not have specified arbitration in their contract.

Counsel must recognize this fact and execute this contract in good faith. Counsel may believe that the court would have given them a better hearing, or that tactically they would have been better off with the Rules of Civil Procedure, but this should not translate into tactics that attempt to sabotage the arbitral process at every turn.

It is essential to the efficacy of the arbitral process that counsel commit themselves to working within the system the parties have contracted for.

The profession has made great strides in developing a robust commercial arbitration practice in Canada. We are fortunate to have excellent provincial and federal legislation. The courts are supportive, but we can do better. We carry too many bad habits with us.

The need to modify our behavior is even more important in the more unstructured world of commercial arbitration. If we recognize this and start acting accordingly, we will be able to deliver on the promise to the business community that this method of resolving disputes is truly more efficient and cost-effective. n

Brian Casey is a partner of Baker & McKenzie LLP and a principal in Baker & McKenzie International.