By: Richard P. Byrne, Esq.
Many practitioners have an ingrained fear of bringing their experts to Mediation. They are concerned that the expert will be subject to challenge and exposed, in effect, to cross-examination. The alternative, however, is markedly less attractive and oftentimes very difficult and frustrating at Mediation – where the attorney positions him or herself as their expert’s surrogate – filtering and interpreting the non-attending expert’s views. Nothing can be more confounding at Mediation than attorneys advancing, debating (and, frankly, spinning) the opinions of their respective experts. While many attorneys may secretly harbor a fantasy that they can present the technical aspects of their cases better than anyone (including their own expert), the reality is that it just is not so.
The dilemma is how best to bring the expert’s work product, analysis, opinions and presence to the Mediation while not opening him or her up to attack or an opportunity for the other side to engage in free discovery. Equilibrium lies in the establishment of pre-Mediation ground rules which anticipate and address the practitioner’s concerns, while allowing the technical claims and defenses to be presented in an effective fashion. The ground rules should be basic and comprised of bright lines, which are not subject to interpretation or subsequent debate, so neither side later feels that they have somehow been “bamboozled.” The protocol should include, among other items: (i) agreement by both sides to have their experts physically in attendance; (ii) defined limitations on the nature and extent of the experts’ presentations in open session; and (iii) an understanding that questions, if any are to be allowed, will be limited to factual inquiries – with the Mediator empowered in his or her discretion to reject questions as argumentative or provocative.
It should also be understood that these boundaries are not applicable to the Mediator in private caucus. It is important for the Mediator to have free rein with the parties’ respective experts behind closed doors. This allows the Mediator the means to secure an optimal understanding of the experts’ findings – with two purposes in mind. First, to explore the possible weaknesses in the factual and technical underpinnings of the experts’ positions. And, second, to build a working knowledge of each expert’s strongest points in order to be able to best convey them to the other side. In doing so, however, the Mediator needs to be mindful not to swim too far from the shore of a lay person, staying focused on processing the experts’ points as a jury member might do. It doesn’t benefit the parties for the Mediator to begin playing the role of a “quasi-expert,” enamored with his or her ability to employ “expert-speak,” and tossing around mundane jargon and technical minutia. Rather, the Mediator needs to understand, appreciate and assess how the experts and their views will be received by lay people in order to best assist the attorneys and their clients in reaching a resolution.
With these controls and cautions in place, there is nothing to fear by having an expert present and participating at Mediation. Indeed, if done properly, the attendance of an expert can meaningfully add to the substance and productiveness of the negotiations, enhancing the likelihood of a successful Mediation.
Richard P. Byrne, Esq., is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. In 2018, for the fourth year in a row, he was voted one of the Top 3 Mediators in the country by the National Law Journal Reader Rankings Survey and was also voted a Top 3 Mediator by the 2018 Corporate Counsel Best of Survey. Also, in 2018, for the third straight year, he was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Further, for the fourth in a row, he was voted a Top Ten Mediator in New York State by the 2017 New York Law Journal Reader Rankings Survey.
To view Richard Byrne’s resume, click here.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.