Making Best Use of Experts in Complex Disputes

by John Gouldsmith

Facilitated Multi Discipline Expert Meeting Process for Multi-party Disputes and ADR

For a complex dispute which is likely to turn on technical issues, how can parties make best use of multiple experts across different disciplines?

Probyn Miers has recently concluded a Facilitated Multi-disciplinary Expert ADR process for a multi-party dispute. This involved a series of 16 multi-disciplinary Without Prejudice (WP) expert meetings over a period of about 4 months, facilitated by an independent neutral chair, in order to address the complex technical issues of a dispute, narrow issues, and deliver a combined ‘open’ joint statement to assist the parties in settlement negotiations.

Litigation was already advanced, and with four parties and 12 technical experts an efficient method of analysing complex technical issues was needed in order to: understand alleged defects more clearly; establish and agree on material facts; undertake further site investigations; share data and the results of forensic studies; evaluate remedial strategy options; and understand the range of expert agreement and disagreement.

WP expert meetings were scheduled for every two weeks or so with dates agreed at the outset. This allowed attendance and planned absence to be managed. These meetings were led by a distinguished independent facilitator jointly appointed by the parties under a ‘facilitation agreement’. Each party bore its own costs of the process which were agreed to be irrecoverable.

In this dispute, 12 individual experts (supported by assistants) brought expertise in facade engineering, façade structural engineering, cladding design, materials and architecture.

As the series of meetings progressed, documents were uploaded to a shared website, and discrete Joint Reports were prepared for different topics.

Innovatively, some WP expert meetings were also attended by technical and design representatives of some of the parties (Technical Advisors), where this was agreed by the experts. For example, Technical Advisors provided input and feedback on current state of the art computer modelling and analysis, and also made presentations on developing remedial options. Some Technical Advisors provided general input to a number of meetings, others were invited to give one off, or a short series, of presentations. Remedial options, mock-ups and samples were also presented and considered at the WP expert meetings. This proved very useful and essential to maintaining momentum when considering certain issues. However, it also required constant attention by the facilitator and experts, to ensure that the ‘rules of engagement’ were respected and followed.

Certain discussions or parts of the process were conducted between expert and facilitator only. Others were conducted in a number of breakout meetings of focused technical expert discussion (with technical advisors where appropriate), which then reported back to the main meeting.

The provision of forensic analysis and technical design inputs and presentations by the Technical Advisors, greatly informed the expert discussions, and moved some issues on further than would be possible by expert meeting only.

The Facilitated Multi-disciplinary Expert ADR process led to the compilation of a comprehensive Joint Report on the issues in dispute, signed by all experts. This was then used to inform negotiations and, ultimately, to achieve settlement via mediation without further expert input.

Following the successful conclusion of the process, there was much positive feedback regarding the approach taken, and to recommend it as a suitable way forward for certain disputes involving multiple parties, complex design, varied workmanship issues, numerous alleged defects and multiple interfacing construction contracts.

There are some watch points that are worth bearing in mind, however; these include the need for:

  • A robust and independent facilitator.
  • Clarity in the terms of reference.
  • Clearly described output goals.
  • Clear deadlines for deliverables.
  • Maintaining awareness of different areas of expertise and avoiding experts straying outside of those areas.
  • Providing shared access to record information for all the experts
  • Allocating (and curtailing) time to ensure that all relevant topics are addressed appropriately.

The process enabled the experts to apply their knowledge most effectively to a complex technical dispute in the interest of all parties and the Court.