There is an ongoing debate as to whether or not it is advisable to use experts in mediation. In many cases that go to mediation, the issues in dispute are often relatively simple, strictly fact-based, and do not require damage calculations. In such cases, experts are often not required. This is generally not the case in the engineering and construction industry. Issues and disputes that occur during construction projects are typically not black and white issues. Using experts in these situations can prove beneficial for everyone involved in the mediation. The purpose of mediation is to find a mutually acceptable solution or compromise. Using construction experts with respect to these more difficult issues can help the client enter the mediation from a position of strength based on a thorough technical analysis. It is also important to remember that this may be the first time the opposing side’s senior management has seen or heard an unfiltered view of the positions.
Construction experts should be used to address technical design, construction, schedule, delay disruptions, impacts, and productivity analyses. They also may provide damage models and address other issues which the parties to the mediation are not completely familiar with and may not understand. It is important to consider that some of the parties involved in the mediation, including possibly the mediator and executive-level decision makers, may not be familiar with the technical aspects of the dispute. It is the expert’s job to present these issues in such a way that everyone involved understands the issues and positions at the center of the dispute.
Mediation is a less formal dispute resolution method than either arbitration or litigation. For that reason, and because mediations are often held earlier in the resolution process, attorneys may choose not to use experts. However, in addition to addressing complicated issues, there are other benefits to having experts involved earlier in the process to assist with the construction mediation.
For instance, one of the biggest obstacles to a successful mediation is that because mediation is often contemplated early in the construction dispute resolution process, one or both of the parties may not have fully evaluated or assessed the facts of the case and the issues in dispute. If the parties have not developed their positions and are unfamiliar with the strengths and weaknesses of their positions, then the chance for settlement in mediation is significantly reduced. When construction experts are involved early in the process, they can help define and evaluate issues, objectively evaluate each party’s strengths and weaknesses, talk with the client and fact witnesses, and discuss the case with the attorney, which ultimately leads to the parties being better prepared. By investing a little more time and effort up front, timely and costly litigation/arbitration may be avoided later.
Consider allowing experts to make a formal presentation, whether they are presenting their own independent analysis or simply presenting the client’s position. The client is often too emotionally involved in the case and gets too caught up in the minutia of the case. This level of detail is not necessary in high-level settlement processes such as mediation. Experts can provide a more summary level analysis and stay focused on the key issues. It is important for key fact witnesses to be present or available during the mediation in the event that factual questions arise. Experts should avoid minor or small dollar issues in their presentation and present the major issues in a succinct and clear manner. Additionally, the expert should simplify complex analyses. Graphics, illustrations, and photographs can emphasize key issues or simplify difficult concepts. If more detailed questions arise, the expert can explain these issues to the mediator in more detail during the breakout caucuses.
Whether presenting their or the client’s position, the expert can be utilized to present the facts, themes, and “story” surrounding the case. This leaves the client out of the line of fire and allows the client to look like the “good guy” by taking a less strict position and making some concessions, which can facilitate both sides making compromises. This is the important first step to settlement in mediations.
The expert should remain at the mediation through the first caucus session to answer any technical questions related to their presentation or to more fully discuss specific issues. However, after these issues have been addressed, the expert should be dismissed in most cases because a majority of mediations become commercial settlement discussions, and the expert’s analyses are no longer needed. It is a good idea to ensure that the expert will be available by phone in case they are needed to answer additional questions.
The attorneys should discuss whether or not they will be using construction experts in the mediation. This will prevent one side from potentially being blindsided and feeling “attacked,” which can derail any potential chance for settlement. A level playing field can prevent one side from feeling overwhelmed, and it can also ensure that an attorney does not look unprepared for the mediation in front of the client in the event the other side has an expert. The goal in mediation is to come to a settlement which maintains a good working relationship between the parties.
Although presentations made in mediation are often considered “for settlement purposes only,” if an expert is going to make a presentation, the attorneys should formally agree that all information and positions presented and discussed in the mediation be considered confidential. This confidentiality should extend to any slide presentations or reports prepared specifically for the mediation. Any material prepared for the mediation should be marked as “For Settlement Purposes Only,” to prevent it from being introduced by the opposing side in arbitration/litigation if the mediation is unsuccessful. If the parties cannot agree upon confidentiality issues upfront, any information provided by the expert in the mediation may be discoverable, and using the expert in the mediation should be reconsidered.
The attorneys should also agree on a general outline for presenting each side’s position, including the expected duration of any expert presentations. The parties are involved in mediation in an attempt to settle the outstanding issues and, if one side takes an inordinate amount of time early in the process to present its side, it can create tension that is not conducive to a successful mediation
In summary, successful mediations are built on preparation, knowledge of the issues, effective presentation of positions, and both parties’ willingness to compromise. Having experts involved early in the process and involved in the construction mediation itself can be helpful in preparing for the mediation, in understanding the strengths and weaknesses of each party’s positions, and in providing an effective presentation of key issues and positions. The decision to compromise is up to you.