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EXPERTS AND EXPERT EVIDENCE IN MEDIATION. Philip Eyre Glovers Solicitors LLP 6 th June 2008. Chartered Institute of Arbitrators. Mediator Members Accredited Mediators Pathway to Fellowship for Mediators (public launch 30 May 2008). Chartered Institute of Arbitrators. - PowerPoint PPT Presentation
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EXPERTS AND EXPERT EVIDENCEIN MEDIATION
Philip EyreGlovers Solicitors LLP6th June 2008
Glovers Solicitors LLP
Chartered Institute of Arbitrators
Mediator Members
Accredited Mediators
Pathway to Fellowship for Mediators(public launch 30 May 2008)
Glovers Solicitors LLP
Chartered Institute of Arbitrators
Availability of CIArb Mediation Rules Based on 1999 rules of Hong Kong International
Mediation Centre Interpreted in accordance with CIArb’s Code of
Professional and Ethical Conduct for Members Important to specify rules in contract – goes to
enforceability of ADR clause (Cable & Wireless v IBM)
Glovers Solicitors LLP
CIArb Mediation Rules
“[The Rules] do not preclude mediation occurring simultaneously with arbitration or litigation”
Glovers Solicitors LLP
Who are the possible experts in mediation?
The Mediator – subject specialist An independent expert appointed by the
mediator Part 35 Party appointed expert Party advisor expert SJE
Glovers Solicitors LLP
Onus on parties to mediate a dispute
Court cannot force parties to mediate
Cost sanctions for unreasonable refusal
Court can order stay of proceedings for mediation
Glovers Solicitors LLP
Nature of Expert’s Duty in Mediation
Does the scope of CRP Pt 35 expert’s (or SJE) duty change in mediation?
Glovers Solicitors LLP
Confidentiality in mediation
Documents prepared for mediation never see the light of day
No risk of later cross examination based on different/divergent statements in written documents
No risk of disciplinary action against expert?
Glovers Solicitors LLP
CIArb Mediation Rules
“12.1 the Institute, the parties, their representatives, their advisors, and the mediator(s) shall keep confidential all information (whether given orally, in writing or otherwise) produced for, or arising out of or in connection with the mediation…………made for the purposes of the mediation.”
Glovers Solicitors LLP
CIArb Mediation Rules
“12.3 no document or other communication that would be admissible in evidence in any
court, arbitral or adjudication proceeding shall be rendered inadmissible by reason only of its disclosure in the course of and for the purposes of the mediation”
Glovers Solicitors LLP
‘Wild West’ for Experts?
Civil Justice Council Protocol does not apply to confidential advice by experts in mediation
Wise to remain independent
Glovers Solicitors LLP
Academy of Experts – Code of Practice
“1. Experts shall not do anything in the course of practising as an Expert, in any manner which compromises or impairs or is likely to compromise or impair any of the following:
(a) the Expert’s independence, impartiality, objectivity and integrity,(b) the Expert’s duty to the Court or Tribunal(c) the good repute of the Expert or of Experts generally(d) the Expert’s proper standard of work(e) the Expert’s duty to maintain confidentiality”
Glovers Solicitors LLP
Partisanship and Advocacy
The expert in mediation has greater scope for partisanship and advocating his or her client’s case
Glovers Solicitors LLP
Vital to keep mediation activities separate
It is vital for an expert to ensure that activities in respect of mediation are kept entirely separate from activities in substantive proceedings
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (TCC)
“The preparation of a case for trial, and the judge’s case management, can reach a stage when the parties have sufficient information about their respective positions to give mediation a good prospect of success. However, in such instances, care is needed to ensure that the two processes of litigation and mediation are kept separate, otherwise there may be disputes over the extent and effect of particular orders by the court.” (HHJ Coulson QC)
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (TCC)
Balancing 2 competing principles of public policy:-Statements signed by both experts should not be kept secret from the courtIn order to encourage the parties to settle their differences in a frank and open manner, the documents generated by or for mediation are privileged
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (TCC)
“(a) Ordinarily, a court order for the provision of a statement signed by both experts as to what they agree and disagree will mean that, once the statement has been agreed, the without prejudice protection will be
removed and the statement can be referred to by all parties in the subsequent litigation. That is so even if the statement is used for the purposes of mediation.”
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (TCC)
“(b) On the facts of the present dispute this was not an ordinary case. The judge
only made the order for the assistance of the parties in the mediation, and the Claimant’s solicitor and the Claimant’s expert acted on that basis. As a result, in
this case, the prima facie position is that the document was privileged.”
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (TCC)
“(c) In view of the limited time and financial constraints on the Claimant’s expert last summer, in the weeks prior to the agreement of
the joint statement, it seems to me that it would be unfair to rule that the statement was now not privileged. I conclude on the evidence that, if
the Claimant’s expert had known that the joint statement was to be used in the litigation if the mediation was unsuccessful, then he would
not have signed it.”
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (TCC)
Terms of the order:-“By 23.09.05 the parties’ architectural experts...do meet without prejudice and prepare a statement of the issues upon which they are agreed and those upon which they are not agreed with a brief statement of the reasons for the disagreement.”(Order of HHJ Thornton)
Glovers Solicitors LLP
Aird v Prime Meridian Ltd (C of A)
Order is to be construed objectively Order made under Part 35.12 and not subject
to privilege Court would have no power to make an order
in terms of providing a statement for assistance of the parties in mediation
(L J May)
Glovers Solicitors LLP
Views on the attendance of experts at the mediation
Parties/Party Advisors choose who attends
Advanced notification of attendees given
Difference in view in UK/US?
Glovers Solicitors LLP
Mediator View on Expert attendance
Mediators in the UK are generally lukewarm about attendance by experts
Glovers Solicitors LLP
Attendance by experts at the mediation
“My first reaction when I see that experts are part of each of the mediation teams’ cast of characters is one of concern. If a mediation goes any distance down the road of ascertaining the ‘correct’ legal or technical position, then it is probably heading for stagnation not settlement. Despite the concept of experts being non-aligned, in practice many experts are as confrontational as litigation lawyers.”
(C. Dodson – “Managing the diverse players in Commercial Mediation”)
Glovers Solicitors LLP
Attendance by experts at the mediation
“Most mediators will have attempted to use the experts in a mediation to sort out the differences on the technical issues which feature in the dispute, hoping that previous experience will not repeat itself, only to find that it does. If the parties really want to resolve technical issues they are in the wrong process but as with the case of technical legal issues, sometimes putting the experts together to try to resolve technical issues is a stage the mediation needs to go through, if only to demonstrate to the lead negotiators that it is likely to be a futile exercise in terms of settling the dispute.”
Glovers Solicitors LLP
Attendance by experts at the mediation
“If there is an expert in a mediation who appears to be obstructing the negotiation process by, for example, having an undue influence on the lead negotiator, then setting up a separate experts-only meeting, chaired by the assistant mediator, can be an effective means of side-stepping this problem.”
Glovers Solicitors LLP
Potential Benefits of expert attendance
Controlled testing of the evidence ‘refereed’ by the mediator
Identifying creative (non-legal) solutions Specialist assistance with advice Dual purpose CPR Part 35 experts meeting chaired
by mediator
Glovers Solicitors LLP
Points to watch
Challenges to independence of an expert at a mediation can force a change of expert
Potential for demolition of the expert evidence if experts test each other
Mediation may highlight need for change in technical case
Who comes out best in a ‘face to face’?
Glovers Solicitors LLP
Points to watch
Private disclosure (written or oral) to the mediator Timing of mediation wrong – parties do not know
their positions on the expert evidence ‘Outing’ private views from previous WP meetings Mediations being used to bolster own case on expert
evidence or to undermine opponent’s case
Glovers Solicitors LLP
Conclusions
Experts can influence outcome of mediations
Caution in advocating client’s case
Lawyers select experts on ability to perform in mediation
Glovers Solicitors LLP
Conclusions
Experts should obtain excellent working knowledge of the mediation process
The process focuses primarily on commercial solutions rather than legal rights and wrongs
Attendance should not be for the sake of curiosity alone