When Wendy Earle was a young lawyer, she had a terrible experience acting on a commercial arbitration and was inspired to write a book addressing the issue
When Wendy Earle was a young lawyer, she had what she calls “a terrible, terrible experience” acting on a commercial arbitration. Everybody involved hoped it would be a quick and efficient process, but it was the exact opposite, she says.
“The arbitration clause was so badly drafted that the litigation and arbitration was a nightmare — it was costly, it was expensive. The arbitration clause was drafted by people who clearly had no idea how arbitration worked, or any litigation worked.”
Following the eventual conclusion of that case, Earle — an arbitrator, mediator and counsel specializing in commercial litigation — had the opportunity to sit down with the arbitrator, Justice Robert Reid, and he suggested someone should write a book about this “so others don’t fall into the horror of this clause again.”
From that nightmare, Earle saw a dream realized — she was inspired to write a book addressing that very issue, and was granted time off to write Drafting ADR and Arbitration Clauses for Commercial Contracts: A Solicitor's Manual, a title that has just been added to WestlawNext Canada’s new Corporate Commercial Collection.
What Earle wanted to contribute to the legal profession by writing this title was, to sum it up, “just help” to provide advice from a litigation lawyer for other lawyers to use when advising clients about a proposed dispute resolution process. She predicts that more and more, lawyers are going outside the big firm or even medium firm model and choosing to be sole practitioners working out of home offices with fairly narrow areas of expertise. In doing so, they lose that easy walk down the hall to get practical, hands on, “I’ve done it and been through this” experience from colleagues. As a result, it becomes difficult to locate the in-depth information they need.
In the last decade or so, her practice has shifted more towards ADR and arbitrations, including designing dispute regulation regimes for complex commercial relationships and advising on the drafting of ADR and arbitration clauses for commercial contracts and self-regulating industry associations. Five years ago, Earle shifted her Bay Street practice to focus on acting as an arbitrator, helping people draft arbitration clauses and enjoying more personal freedom.
Earle built up her network as she transitioned to sole practitioner, “allowing for the exchange information on cases and relevant blogs” to keep up with current issues. But it’s an informal approach and, depending on the strength of the network, could be hit or miss. Earle’s book, and the others that round out WestlawNext Canada’s new collection of Corporate Commercial texts and annotations, looks to address this issue and fill that gap.
For example, there’s no shortage of easily accessible information on case law, precedents and other resources needed to draft a solid arbitration clause, Earle says. But what is “much, much harder to put your finger on is the litigation experience with arbitration or alternative forms of dispute resolution — how it actually plays out, how it actually works.”
“The built-up experience of clauses that look good, but turn into a disaster is talked about in very few places and you can only really access it if you can call a litigation lawyer who has had a lot of experience and ask them, ‘what do you think about this idea, or this wording, or this precedent?’ That’s the hard part.”
Earle’s Drafting ADR and Arbitration Clauses for Commercial Contracts is a step toward accessing that litigation experience.