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The Best Use Of Experts In Mediation

/ 1 July 2023

‘always on tap but never on top’…

Sir Winston Churchill said it is essential to a PM’s sound decision making to have scientists on tap but to never have them on top. The same holds true for the role of experts in dispute resolution.

Often disputes will involve or arise from disagreement between experts on matters within their area of expertise. For example, in a defective construction dispute, experts will be hired to support or defend criticism of construction work, design, cost, and quality.

The weeks and the days leading up to a mediation might be dominated by lawyers reviewing opposing expert reports and planning how the opponents’ experts will be challenged and how their expert will defend their views. By this stage in the process a few dynamics are important to keep in mind.

The expert has probably charged considerable fees to produce their report and the litigant, and their lawyers have relied on those opinions to invest time and money preparing a case for trial. This is bound to make an expert feel a personal responsibility for the outcome of the dispute. If their client loses, it is all wasted, and the instructing lawyer may never use them again.

This can make experts reluctant to concede their opponents’ criticisms of their reports and evidence.

The expert and their opposite number are peers in the same profession. They might know each other well and might have ‘crossed swords’ many times before. Professional standing can become pride which can become a rivalry which can in some situations become very adversarial.

This can generate a very strong desire to ‘win’ and turn the expert into an advocate. There are three clear signs of this happening:

First, the expert starts asserting views on matters outside their area of expertise, to support the case generally. Secondly, the expert starts throwing ‘grenades’ into the discussion, such as ideas or points that are not in their reports and often turn out to be ‘red herrings’. Lastly, they begin to aggressively interrogate each other, often speaking over each other, almost to the point of heckling.

If any of these three symptoms emerge during a mediation, there are some useful remedies.

First, keep the experts in their swim lane. Politely remind them what they are there for. Secondly, keep their statements linked to the evidence and where available professional materials they rely upon to support their positions. Finally, make it clear that the mediation is not a gladiatorial arena for expert confrontations. There will rarely be a ‘winner’ in these discussions. The experts are there to assist the parties to understand the case they will face if the dispute is not settled and their risk of losing at a trial.

There are also two important considerations to have in mind. An expert being ‘rattled’ in a mediation setting under interrogation by another expert is not a predictor of how a court will receive their evidence. A court is looking more at was the expert’s view logical and reasonable and was it supported by the evidence and the relevant literature on the topic. Remember lawyers will not be permitted to barrack an expert in court, interrupt them or pass snide remarks on their opinions. All of which can rattle an expert in a mediation.

Secondly, experts are not there to advise a client on the overall merits of their case and whether or not to accept an offer. In this regard, once the ‘duelling’ is done and you form a view about the strength of your case, it is often best to let the experts leave, rather than keep them to the end. Their participation could become for them more about besting a professional colleague than about the best result for the litigant.