Use of experts in mediating conflicts in creating the built environment

If you have ever been involved in litigation or arbitration of construction or environmental disputes, you have experienced the world of “dueling” experts. This is probably one of the most expensive aspects of an adversarial process in the resolution of these matters.

In an adversarial forum, significant time and expense is involved in: identifying experts; getting the expert who will testify to review all information and produce an expert report; producing draft and final reports; producing the report in discovery and deposing the expert; and preparing and having the expert testify at the hearing. All of this wouldn’t be quite so troublesome, if the other side wasn’t going through the same time and expense of retaining an expert – and making certain their expert disputes and rebuts as much of the other side’s expert opinion as possible.

How can the use of experts be better applied in mediation of these types of disputes?

USE OF A NEUTRAL TECHNICAL ADVISOR – The first effort should be to see if the parties could agree on a single neutral technical advisor. This advisor can provide a non-binding (or binding) opinion on the technical matter in dispute. The parties may end up accepting his/her opinion as is, rather than continue with the expense of “dueling experts” in the next step.  When outright acceptance doesn’t occur, the neutral advisor’s technical opinion can be very valuable in narrowing the issues.  If the parties cannot agree exactly to his/her findings they can be left with fewer issues and a better basis to negotiate.

USE OF PARTY EXPERTS FOR MEDIATION – When it makes sense for each party to provide its own technical position for a mediation, individual party experts can be used much more efficiently in mediation than in litigation/arbitration.  The parties can abbreviate the experts’ analysis, produce a confidential finding, and reserve the right not to use the expert in litigation.  Probably most importantly, the parties in the context of a mediation, can get the experts to talk to each other, try to find common grounds and conclusions, and hopefully again narrow the issues to be dealt with in getting to a settlement.

Mediating conflicts in creating the built environment

This blog will address the use of  mediation for conflict resolution in creating (planning, approving, designing, building and operating) the built environment. Mediation is defined as use of a neutral to help facilitate resolution of conflicts and coming to an agreement by negotiation or consensus building. The particular “built environment” will focus mainly on infrastructure – including energy, water, waste and transportation.  Issues include: how to conduct the mediation; when in the dispute process to mediate; should lawyers participate and attend; how and when to use experts; techniques and lessons learned.

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