The price of proof: Using experts in mediation

As the world becomes increasingly complex, lawyers and parties rely more heavily on experts to explain technical issues and persuade judges, juries, arbitrators and (yes) mediators, of their version of the events.

Experts can be extremely helpful to the mediation process. They can also impede the process of settlement and create problems for the mediator, the lawyers and eventually, the parties as well.

In my construction and real estate mediation practice, experts are ubiquitous. Particularly in construction cases, where the central issues involve a complex analysis of the scope, method and repair of construction defects, or an analysis of delay and disruption and the consequential damage calculations, the cases are often expert-driven. In this context, how can an expert help and how can an expert harm a case?

First, the credibility of the expert is paramount to the process. Credibility is the result of many factors, some tangible and some intangible. Some of the tangible factors are the education and experience of the expert, the thoroughness of the expert's evaluation, the professionalism displayed (or not) in the expert's report, the expert's grasp of the facts and the expert's ability to articulate those facts in a clear and convincing manner. Some of the intangible factors are the expert's reputation in the community, the reasonableness of the expert's opinions, the care taken to restrict comments to opinions and not step into the arena of advocacy on legal issues or tactical considerations and the overall "look and feel" of the expert, meaning - does the expert present well, seem organized and professional, and does he or she seem sincerely committed to finding some truth in the facts and not merely arguing positions.

Second, an unprepared expert, even if credible, can impede the mediation process, or sometimes set the process back. Parties and their lawyers in expert-driven cases come to the mediation with the basic expectation that their questions will be answered (whether everyone agrees with the answers is another consideration). When an expert cannot answer questions or provide information that is basic to the case, the parties, their counsel and the insurance carriers become frustrated by the process and feel that their reasonable expectations have not been met. This usually results in a series of "homework assignments" and a rescheduling of the mediation, resulting in more time and expense for everyone.

Third, it's possible for an expert to have answers but for those answers to be so unsatisfactory that it would have been preferable for the expert to have said nothing. This is the classic case where the expert decides to "wing it" rather than simply stating that he or she needs more information or more time to formulate a thoughtful response. The tendency of an expert to shoot from the hip, or to invent an answer on the spot not only brings progress to a halt, it also erodes the credibility of that expert in the eyes of the opposing parties, their lawyers and their experts, but also in the eyes of the mediator and the party who retained that expert. In short, it's far better for the expert to simply say "I don't know and I need to find out" than it is to bring forth an unpersuasive answer that no one will believe even if that requires the parties to return at a later date.

Fourth, some experts come to the mediation process with a certain amount of unproductive "baggage." That baggage can include a reputation for taking positions that aren't supported by the facts and then refusing to change those opinions when confronted with reliable contrary information, or taking positions that are uniformly plaintiff or defense oriented and not related to the merits (the classic "plaintiff's expert" or "defense expert"). It can include a propensity to state opinions that are clearly outside the expert's field of knowledge.

Fifth, the transition from expert to advocate many times creates the most problems in mediation. One of the challenges in the mediation process is getting the parties to understand that their legal and factual positions are subject to attack and that its possible that the judge, jury or arbitrator may reject those positions and accept those of their adversaries. When an expert expresses an opinion about legal or tactical issues, it can be difficult for a party to keep that opinion in context, because the expert sometimes assumes a "super-important" role in the process. In other words, the opinion articulated by the expert takes on added significance to the party simply because that opinion was uttered by an "expert." The result is that the mediator has to spend time and effort making the parties (and sometimes their lawyers) understand that the expert's opinion on legalities and tactics isn't gospel, it's simply another opinion that will be subject to attack by the other side of the case.

Sixth, the "expert-as-advocate" brings one additional negative dynamic to the mediation. In my practice, I commonly utilize the idea of facilitated expert meetings, where I sit down with the experts without the parties and their lawyers. It is my experience that qualified, professional experts can and will agree on many of the issues in the confines of a meeting with me and without having to, shall we say, "perform" for others. That agreement very often allows a rapid resolution of the issues and helps the parties reach a settlement. However, when an expert in a facilitated meeting does not wish to concentrate on the substantive issues but decides, instead, to advocate for a certain position, it is my experience that no progress will be made and that the road to a resolution will be longer and more expensive.

Experts can do enormous good at mediation. An expert who is experienced, thoughtful, articulate, and who has thoroughly evaluated the issues and prepared a clear and easily understandable report can help the process move forward rapidly and efficiently. In this regard, there is a tendency to confuse technology with effectiveness. I have seen reports in a file folder, PowerPoint presentations, videos and everything in-between. Sometimes the file folder presentation is powerfully effective, because it is concise, well organized and has all the necessary information. Sometimes the PowerPoint presentation is ineffective and unpersuasive because it contains too much information with too much detail.

In thinking and planning on how to retain the expert and how to present the expert's opinion at mediation, the following points are key: Does the individual have the requisite depth and breadth of knowledge and experience in the field? Has the expert done a thorough job in evaluating and organizing the facts? Does the expert's report present the facts clearly and concisely? Is the expert flexible in his or her approach or inappropriately rigid and unyielding, even in the face of reasonable contrary facts and arguments? Does the expert have a reputation that will diminish his or her credibility before the mediation even starts?

An expert who acts professionally and treats the other side and their expert respectfully will not only enhance your position in the controversy but also move the case toward a resolution with a minimum of time and expense to your client.