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Making a positive contribution: How an Expert Witness adds value to the mediation process
- Oct 17, 2024
- Latest Journal
By Robert Dale, Senior Partner and Expert Witness for Daniel Connal Partnership
Stories of court cases where the sum disputed is completely dwarfed by the ultimate cost of bringing the legal action, are legion, Gilks v Hodgson (2015), for instance. A boundary dispute between neighbours which went all the way to the Court of Appeal, where damages to the tune of £3,500 were awarded to the claimant, but the legal costs totalled nearly £500,000. Worse still, the sad spectre of people or companies bankrupted by standing on principal, a refusal to negotiate or even countenance an alternative viewpoint. Cases drag on over months, years, decades even.
This leaves the detached bystander wondering why on earth the parties couldn’t just have got around a table and talked things through. Gilks v. Hodgson is perhaps representative of the kind of case that should have been compromised on terms that both parties could live with, without ending up in court. It’s why, of course, alternative dispute resolution methods - arbitration, mediation, etc. have become a recognised and increasingly popular means of resolving disputes. It’s often quicker, almost certainly less expensive, and more confidential than going to court. The Mediation process can also help preserve business relationships and allow companies to move on from disagreements sooner.
The introduction of an impartial and independent Mediator encourages the two sides in a dispute to see the issues from each other's perspective thereby reducing conflict, misunderstandings and misapprehensions. This constructive process smooths the way for collaborative problem-solving of the issues at hand.
There can also be a crucial role for an Expert Witness or Witnesses within the mediation process - a real opportunity to add value - and contribute to a fair and reasonable settlement for both parties.
In the first instance an Expert Witness brings specialised knowledge to the table. This technical expertise makes a positive contribution, allowing for a more informed discussion between the parties. It also helps to bridge any knowledge gaps, fostering understanding and facilitating a satisfactory resolution. This clearer understanding can help to speed up the mediation process, making it more efficient for all concerned.
Unsurprisingly, emotions can often run high in disputes. Introducing an Expert Witness into a mediation provides an impartial viewpoint grounded in facts and evidence – an objective perspective. This objectivity can help to mitigate emotional conflicts and keep discussions focused on relevant issues, thereby promoting a more constructive dialogue.
When both parties present Expert Witnesses, it can enhance the credibility of their individual positions. These impartial contributors can not only foster a sense of trust in the mediation process but also increase confidence from both sides that their position has been clearly and accurately expressed - making the chances of a mutually acceptable settlement, a fair resolution of the case, more likely.
Within the mediation process, the Expert Witness can assist the Mediator by helping to identify common ground in their analysis of the subject. They can facilitate collaboration and promote compromise between the parties and increase the likelihood of a positive outcome.
An Expert Witness is, by definition, widely experienced and knowledgeable in their field. There is therefore every chance that they will have previously encountered, resolved or contributed to resolving similar issues. Consequently, they may be able to propose practical solutions, options or alternatives for consideration. These recommendations can help guide the mediation process towards a viable solution that addresses the concerns of both parties.
Within any industry or sector, standards, technologies and practices are constantly being updated and improved. Any Expert Witness worth their salt will be a member of a recognised professional organisation - with requirements to keep up to date with CPD, and appropriate training. This current knowledge applied to a dispute will empower the parties to make better decisions, encouraging a more productive mediation environment.
A successful mediation concludes with a settlement discussion. The insights and credibility provided by expert witnesses can enhance these settlement negotiations. When parties have a clearer understanding of the strengths and weaknesses of their positions, they may be more willing to negotiate in good faith.
By clarifying issues and suggesting solutions, an Expert Witness can help parties reach an agreement during mediation, potentially reducing the likelihood or need for costly and time-consuming litigation.
But if a settlement is not reached during the time allocated for the mediation, this does not mean that the mediation was not successful or that including an Expert Witness was a waste of time and resources. The insight and expertise provided by the Expert Witness, will have ensured that the parties have a greater understanding of their dispute. Ultimately, this may lead to future efficiencies in resolving the matter. For instance, the parties may settle soon after the mediation or, should the matter end up in court, a reduction in court time and resultant costs.
In mediation, the involvement of Expert Witnesses from both parties can significantly enhance the process. By providing clarity, objectivity, and informed perspectives, they facilitate better communication, foster collaboration, and contribute to a more constructive resolution. This collaborative approach ultimately benefits all parties involved, promoting a more efficient and amicable outcome.
Author
Robert Dale is Senior Partner and an Expert Witness for Daniel Connal Partnership. Find out more about Daniel Connal Partnership at www.danielconnal.co.uk