MEDIATING EXPERT-INTENSIVE DISPUTES

 Varying perspectives on central technical or scientific issues is a common thread among many environmental and natural resource law disputes, but is of course equally applicable to disputes in many other disciplines. It’s a familiar dynamic. A case involves highly technical matters, whether it be contaminant forensics, chemical fate analysis, health effects from exposure to pollutants, risk-based assessments, or for that matter any matter involving technical or expert issues. You hire top experts to advocate for your client’s position. So does the other side. All of those experts essentially have available the same information and data. Yet, they come to diametrically opposed positions. They prepare their expert reports. Depositions follow. Positions harden and litigation proceeds. The trial date approaches. The cost keeps going up, but no resolution.

A critical consideration is what role do those experts play when the parties are engaged in mediation efforts to resolve the dispute. As a mediator, I of course want to understand the perspective of each respective expert to better assess the strengths and weaknesses of each party’s case, help synthesize the central issues, and assist the parties in exploring ways to resolve the matter. However, simply hearing a party’s lawyer telling me what the expert thinks, or even reading expert reports or advocacy pieces, only goes so far. What is more meaningful in many cases is having the expert directly engage in the mediation.

There are a number of factors that must be considered before having experts participate in the mediation, and assessing how that participation should be structured. As an initial matter, it must be determined whether the dispute itself revolves around the technical issues to begin with. If not, no need for expert participation. If the technical issues are directly relevant to the dispute, the most benign structure is simply to have the experts sitting in the room with their clients during the mediation session, and having no interaction with the other parties. Each party’s experts will in that scenario explain to the mediator why their conclusions are correct and the other experts are wrong. Helpful to some degree, but there are even more robust options that may further dispute resolution.

In many cases, experts are talking past one another. Where the parties have proceeded under the construct that there are a multitude of disagreements among the experts, in some instances it turns out that there is actually less disagreement than first appears. Having the experts from the various parties together at some points during the mediation, under the direction of the mediator, may enable them to determine where there may be less disagreement than initially thought, and get to the root of the real and determinative differences. The mediation can then focus on those issues more directly and efficiently.

Of course, there naturally will be some reluctance to having the opposing experts engage with each other. Although mediation confidentiality will prevent any statements of an expert from being used against that expert, that does not address the fact that the discussion itself may clue one side into strategies and positions that the other side has no desire to share. That is where ground rules, agreed to by all counsel and the mediator, must be established to ensure no side is giving away anything it does not want disclosed. That said, by the time that mediation session occurs, it is likely that each expert knows full well what the other expert’s position is, and the bases of that position.

Whether it makes sense or is appropriate to have experts participate at all in the mediation, and if so, whether to bring the competing experts together in the same room, must be made on a case-by-case basis, and have the complete buy-in of the respective parties. But it should at least be considered, and in many cases can further prospective resolution.

The take away from this is that no two disputes or mediations are the same. Each has its own issues, flow, and personality that must be taken into account when considering how best to structure the mediation in a way to increase the chances of success.

Please contact me at josh@jabmediation.com to discuss your specific situation.