oct ewj 24 online - Flipbook - Page 98
Making a Positive Contribution:
How an Expert Witness Adds Value
to the Mediation Process
By Robert Dale, Senior Partner and Expert Witness for Daniel Connal Partnership
Stories of court cases where the sum disputed is
completely dwarfed by the ultimate cost of bringing
the legal action, are legion, Gilks v Hodgson (2015), for
instance. A boundary dispute between neighbours
which went all the way to the Court of Appeal, where
damages to the tune of £3,500 were awarded to the
claimant, but the legal costs totalled nearly £500,000.
Worse still, the sad spectre of people or companies
bankrupted by standing on principal, a refusal to negotiate or even countenance an alternative viewpoint.
Cases drag on over months, years, decades even.
keep discussions focused on relevant issues, thereby
promoting a more constructive dialogue.
When both parties present Expert Witnesses, it can
enhance the credibility of their individual positions.
These impartial contributors can not only foster a
sense of trust in the mediation process but also increase confidence from both sides that their position
has been clearly and accurately expressed - making
the chances of a mutually acceptable settlement, a fair
resolution of the case, more likely.
Within the mediation process, the Expert Witness can
assist the Mediator by helping to identify common
ground in their analysis of the subject. They can facilitate collaboration and promote compromise between
the parties and increase the likelihood of a positive
outcome.
This leaves the detached bystander wondering why
on earth the parties couldn’t just have got around a
table and talked things through. Gilks v. Hodgson is
perhaps representative of the kind of case that should
have been compromised on terms that both parties
could live with, without ending up in court. It’s why,
of course, alternative dispute resolution methods arbitration, mediation, etc. have become a recognised
and increasingly popular means of resolving disputes.
It’s often quicker, almost certainly less expensive, and
more confidential than going to court. The Mediation
process can also help preserve business relationships
and allow companies to move on from disagreements
sooner.
An Expert Witness is, by definition, widely
experienced and knowledgeable in their field. There
is therefore every chance that they will have previously
encountered, resolved or contributed to resolving
similar issues. Consequently, they may be able to
propose practical solutions, options or alternatives for
consideration. These recommendations can help
guide the mediation process towards a viable solution
that addresses the concerns of both parties.
The introduction of an impartial and independent
Mediator encourages the two sides in a dispute to see
the issues from each other's perspective thereby
reducing conflict, misunderstandings and misapprehensions. This constructive process smooths the way
for collaborative problem-solving of the issues at hand.
Within any industry or sector, standards, technologies
and practices are constantly being updated and improved. Any Expert Witness worth their salt will be a
member of a recognised professional organisation with requirements to keep up to date with CPD, and
appropriate training. This current knowledge applied
to a dispute will empower the parties to make better
decisions, encouraging a more productive mediation
environment.
There can also be a crucial role for an Expert Witness
or Witnesses within the mediation process - a real opportunity to add value - and contribute to a fair and
reasonable settlement for both parties.
A successful mediation concludes with a settlement
discussion. The insights and credibility provided by
expert witnesses can enhance these settlement negotiations. When parties have a clearer understanding
of the strengths and weaknesses of their positions, they
may be more willing to negotiate in good faith.
In the first instance an Expert Witness brings
specialised knowledge to the table. This technical expertise makes a positive contribution, allowing for a
more informed discussion between the parties. It also
helps to bridge any knowledge gaps, fostering understanding and facilitating a satisfactory resolution. This
clearer understanding can help to speed up the
mediation process, making it more efficient for all
concerned.
By clarifying issues and suggesting solutions, an
Expert Witness can help parties reach an agreement
during mediation, potentially reducing the likelihood
or need for costly and time-consuming litigation.
Unsurprisingly, emotions can often run high in
disputes. Introducing an Expert Witness into a mediation provides an impartial viewpoint grounded in
facts and evidence – an objective perspective. This objectivity can help to mitigate emotional conflicts and
EXPERT WITNESS JOURNAL
But if a settlement is not reached during the time
allocated for the mediation, this does not mean that
the mediation was not successful or that including an
Expert Witness was a waste of time and resources. The
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