EXPERTS AND EXPERT EVIDENCE IN MEDIATION

EXPERTS AND EXPERT EVIDENCEIN MEDIATION Philip Eyre Glovers Solicitors LLP 6th June 2008

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 court • In 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 Glovers Solicitors LLP

EXPERTS AND EXPERT EVIDENCE IN MEDIATION