Experts at mediation

Gary Webber Tips Leave a Comment

Often parties in property disputes rely on experts of the same discipline and the experts are invited to the mediation. The question then is, what is the most effective way such experts can be used during the mediation?

I have had a great deal of experience of this, and have discussed it with fellow mediators. Sometimes the two experts can agree, or at least narrow the gap between the parties, and this has happened. However it is more often the case that, having taken a position and advised their client accordingly, they feel unable to move away from that advice.

In one case, in a meeting I called with both experts, without lawyers or clients, substantial progress was made, but when one expert returned to his room, he retracted what he had said in the earlier meeting!

In other cases the two experts simply disagreed with each other on everything.

In a more productive case I invited the experts to speak in the opening joint meeting. A superb discussion ensued that included the experts, the clients and the lawyers. Many issues were clarified, views tested and forms viewed as to the risks involved. The meeting took up most of the morning but it then allowed some very fruitful negotiations to take place in the afternoon which led to an early settlement.

So, in preparing for a mediation, it is probably worth talking to your expert (who maybe has not had a great deal of mediation experience and probably no mediation training) to prepare him / her for the mediation, and also to work out tactics. For instance, recently after the experts failed to agree, I asked the two principals, without lawyers or experts, to meet me. One immediately said he realised his expert had put a certain figure forward, and it was rather high, and within a short time, the two principals had reached agreement. Whether this was a pre-arranged tactic or not I do not know, but it was effective!

Alan Langleben

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