Experts in Mediation
John Delaney – Ireland Director
Many forms of dispute resolution are considered excessively expensive, protracted, formal and/or unpredictable. Indeed, those involved in litigation or arbitration may recognise such descriptions as all too familiar.
In recognition of these and other issues, and with a view to harmonising dispute resolution procedures within the European Union (the EU), the EU issued a directive on mediation (EU Mediation Directive 2008/52/EC) which applies to both civil and commercial matters. In Ireland, the Mediation Act 2017 (the Act) is a statutory framework designed to “facilitate the settlement of disputes by mediation, to specify the principles applicable to mediation [and] to specify arrangements for mediation as an alternative to the institution of civil proceedings”. Section 16 of the Act provides that a court may, on its own initiative or on the initiative of the parties, invite the parties to consider mediation as a means of resolving the dispute.
Similarly, in the UK, parties in dispute are obliged under pre-action protocols to consider whether alternative dispute resolution (ADR) mechanisms, such as mediation, are appropriate to settle their dispute. The courts have powers to encourage parties to mediate, vested by the Civil Procedural Rules (CPR), as per CPR 1.4. Furthermore, CPR 26.4 provides for parties to request a stay of proceedings to attempt to settle their dispute by ADR. In the event of a perceived unreasonable failure to consider or attempt mediation, the UK courts will most likely impose cost sanctions on recalcitrant parties.
Mediation is a voluntary process that involves engaging a third party to assist the parties in dispute in agreeing a settlement. The Act describes the key characteristics of a mediation as:
- The right of the parties to legal advice; and
- The right of the parties to cease the mediation process at any time.
The Expert’s Role and Early Engagement
Construction and engineering disputes often involve detailed technical issues relating to design, defects and delays, as well as valuation and payment, which require an expert witness (expert) to provide their expert opinion on matters within their field. Early engagement of an expert in such matters is advisable for a number of reasons, including:
- It can assist a party and their legal team to better understand the potential strengths and weaknesses of a case; and
- It can potentially encourage a settlement when a party better understands their position.
A recent, much-publicised decision from the Court of Appeal in England and Wales describes the role and effectiveness of an ‘independent expert’:1
On a proper analysis, the expert’s overriding duty to the court could be said to be one of the prime reasons why the expert may indeed owe a duty of loyalty to his client. In many cases, the client instructs an expert to provide extensive pre-trial services and then to give expert evidence at the trial. The client wants a frank and honest appraisal of his case by the expert at the earliest possible opportunity. There is no point in the client spending a good deal of money pursing or defending a claim if his underlying position is hopeless, but none of his other advisors is prepared to tell him so. The client knows that, because an expert has to stand up before the judge or the arbitrators and say that his report is true to the best of his knowledge and belief, and represents his honest opinion, the expert will only be prepared to do that if he or she has first ensured that the pre trial work has led to the formation of a position which the expert can support. None of that is contrary to any duty of loyalty: on the contrary, complying with the overriding duty to the court is the best possible way in which an expert can satisfy his professional duty to his client.
Moreover, that is entirely consistent, in my experience, with what delay/quantum experts are usually engaged to do. They are retained at an early stage to sift through the reams of factual material, looking for particular events on which to focus. The delay expert collates that material and can often save a huge amount of time and resources by focusing the client’s litigation support team on the factual issues as to delay which are really going to matter. In construction arbitrations, it would be rare for a delay expert to merely be a testifying expert. The whole purpose of having such an expert, along with his team, is to provide wide-ranging support and advice, in the hope that, ultimately, the case settles and there is no hearing at all.
It can therefore be inferred that an expert’s role is often facilitative. Their advice can be utilised by their respective clients to reach an amicable and commercially acceptable resolution, whether that be achieved through negotiation or another ADR forum, like mediation.
Experts in Mediation
A significant difference between mediation and other forms of ADR is the comparative absence of formality in the process. Whilst this is often an advantage for the parties, it is not necessarily so for the party appointed expert. The absence of formality in mediation creates a potential minefield, generating circumstances where it is possible for an expert to stray beyond their primary duties of independence and impartiality. How might an expert, their appointing solicitors and their client navigate expert evidence in a mediation whilst adhering to the expert’s primary duties?
As with most endeavours, adequate preparation and a clear understanding of the process is an important first step. An expert’s role both prior to and during the mediation should be identified and clearly defined. This is usually addressed in the Letter of Instruction from the solicitor and any concerns or issues that may require further clarity can and should be dealt with at this stage.
The expert should understand what tasks are required and their parameters; for example, the submission of a formal report, the extent of engagement (if any) with the other party’s expert, without prejudice expert meetings and an oral presentation at the mediation itself.
In the pre-mediation stage, the expert is often required to provide their opinion as to the strengths and weaknesses of a party’s case. Where the expert is appointed or likely to be appointed in more formal proceedings in the future, it is important that the primary duties are maintained at all stages. It is critical that the roles of advisor and expert are clearly understood.
Factors which necessitate careful consideration include whether the mediation is facilitative or evaluative, whether the mediation is physical or remote, whether attendance is required, how the expert can communicate and who with, and what tasks they may undertake.
Attendance and communication protocols require particular attention in circumstances where the expert is, presently or may be appointed as, an expert in formal proceedings in the future2. For example, an expert’s exposure to private meetings between the client and its legal team, in which the details of potential compromises are discussed, may adversely affect their ability to comply with their primary duties further down the line.
Under no circumstances should an expert stray into any form of advocacy. Any submissions or written statements issued to the mediator and the other party that require input from an expert should always be independent and impartial. Almost all expert submissions should be issued as stand-alone documents (as opposed to being presented within the parties’ submissions) and should only address matters within the expert’s field of expertise.
The knowledge gained during a mediation is a potential minefield for an expert, especially if the matter continues to arbitration or litigation where their opinion will be put to the test under cross examination. Where relevant evidence or material is utilised during a mediation but is not disclosed thereafter, and depending on its relevance to the expert’s opinion, it may be the case that the expert considers it impossible to ignore in future proceedings. An expert’s overriding duty to the court/tribunal prevents them from excluding relevant evidence of which they have knowledge. Cherry picking is not considered a feature of an expert’s independently formed opinion.
Knowledge is gained by all parties and their representatives during a mediation, including the position taken by the opposing side’s expert. It is likely that the independence and impartiality of an expert will be cast in doubt in circumstances where they adopt one position in a mediation but a different one, based on broadly the same evidence and material, in a subsequent arbitration or litigation.
Decisionmakers considering the evidence of experts who, without good reason, provide a different position in a mediation to that taken before them are unlikely to give much, if any, weight to their evidence.
It therefore seems that the best way to avoid a potential mine is to prepare thoroughly – establish whether the role is that of an expert or advisor, identify and define what is required of the expert in the mediation, and establish clear protocols as to how the mediation will progress, how communication between the expert and various parties will be managed and what tasks the expert is expected to undertake. As mentioned previously, mediations often lack formality which allows for issues to be addressed more on a potential settlement approach, rather than a merits/contractual one. Experts and their instructing solicitors need to be alive to the potential implications of the expert’s independence and impartiality and act accordingly during the process.
The Academy of Experts issued a very helpful guidance note in January 2021 – “Experts Participating in Commercial Mediation”3 – which is recommended reading for clients, appointing solicitors and experts alike.
1 Secretariat v A Company  EWCA Civ 6 – Paragraphs 62 and 86 (emphasis added).
2 Chartered Surveyors are referred to the mandatory RICS practice statement and guidance note “Surveyors acting as expert witnesses” (4th Edition).