1 Risk and Reputational ManagementThings That Go Bump In the Night Tamela J. Coates Partner Charmaine Toms General Counsel

2 WHAT KEEPS YOU AWAKE AT NIGHT?

3 WHAT KEEPS YOU AWAKE AT NIGHT?Brand/Reputational Damage?

4 WHAT KEEPS YOU AWAKE AT NIGHT?What’s going on that you don’t know about, but should…?

5 WHAT KEEPS YOU AWAKE AT NIGHT?The unexpected — and unbudgeted for?

6 WHAT KEEPS YOU AWAKE AT NIGHT?Demonstration of Legal’s Value-Add?

7 WHAT KEEPS YOU AWAKE AT NIGHT?Publicity / Media?

8 WHAT KEEPS YOU AWAKE AT NIGHT?Disclosure of Sensitive Information? (Data Privacy, Privilege, etc.)

9 WHAT KEEPS YOU AWAKE AT NIGHT?All of these things can be exacerbated — or perceived to be exacerbated — when a dispute or controversial issue arises (whether inter-parties or with regulators).

10 Some Considerations for Managing the “Bumps” Relating to Disputes

11 Overview: Before After The new P3’s

12 BEFORE BEFORE Be Proactive: Re: Substance Re: Process

13 BEFORE — PROACTIVE RE: SUBSTANCEBe Proactive re: Substance Use a different lens to review agreements before they’re final

14 BEFORE — PROACTIVE RE: SUBSTANCEa “litigator’s review” (apart from Dispute Resolution clauses) the agreement as a whole Events of default and curative provisions Choice of laws Termination provisions International or domestic dispute

15 BEFORE — PROACTIVE RE: SUBSTANCEa “senior management review” a “stakeholder review” a “regulator’s review”

16 BEFORE — PROACTIVE RE: PROCESSBe proactive re: Process Spend time upfront on dispute resolution clauses

17 BEFORE — PROACTIVE RE: PROCESSBecause courts enforce them: ss. 6 and 7 of the Arbitration Act Seidel v. Telus Communications Inc. (SCC, 2011) Agrium Inc. v. Babcock & Wilcox Canada Ltd. (ACA, 2005) A lesson from A.G. Clark Holdings Ltd. v. HOOPP Realty Inc. (ACA, 2013 and 2014)

18 BEFORE — PROACTIVE RE: PROCESS (DR Forums)Define a “good outcome” Determine the goals to be achieved, generally and for specific types of disputes: Preserving business relationships? Preventing work / supply stoppages? A speedy resolution or time to fully explore and understand or move the issues into a different business horizon? Precedent? Confidentiality or public acknowledgement? Public /Stakeholder Perception? Does an arbitration clause capture the types of disputes you want it to?

19 BEFORE — PROACTIVE RE: PROCESS (Graduated Clauses)A caution re: graduated dispute resolution clauses (ie. negotiation before mediation, before arbitration or litigation)

20 BEFORE — PROACTIVE RE: PROCESS (Graduated Clauses)Level “Front line to front line" negotiation If fail, goes to the boss — saving face v. solving problem Level “Senior executive to senior executive” negotiation Fortune 500 CEO (foreign?) and Bob (CEO of Bob’s Mom and Pop) Non-availability

21 BEFORE — PROACTIVE RE: PROCESS (Graduated Clauses)Level Mediation Forced “voluntary” participation Timing and business issues that have arisen in the meantime: Work/supply stoppages? additional cost before eventual resolution process even starts

22 BEFORE — PROACTIVE RE: PROCESS (DR Forums)There are material differences between dispute resolution forums and how they address the factors that keep you awake at night:

23 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

24 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

25 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

26 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

27 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

28 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

29 ON A 1-5 SCALE (5 = OPTIMUM; 1 = UNSATISFACTORY)

30 AFTER AFTER Its all about people management, so have a well stocked tool box: Re: How to deal with the dispute Re: How to deal with the aftermath of the dispute

31 AFTER — HAVE A WELL STOCKED TOOL BOXThe almost trite: Disputes ultimately arise because of people taking adverse positions People management is therefore the key to resolving disputes People management is also key to living with the result of the dispute – both as to process and as to outcome

32 AFTER — HAVE A WELL STOCKED TOOL BOXWhen selecting those to deal with the dispute (business people, trier or facilitator, and counsel), consider: Subject matter expertise v. people management expertise Flexibility/inflexibility in dealing with different people during a single dispute The “hired gun” The “pooh bear” Mr. Dressup’s “tickle trunk”

33 SUMMARY The New P3’s

34 SUMMARY – THE NEW P3 Proactive Process People

35 Tamela J. Coates Partner P: 403.218.7534 E: [email protected]Charmaine Toms General Counsel P: E: