Complex technical and construction disputes invariably involve experts, sometimes in significant numbers and covering a range of disciplines, often at great cost.
Australia has been at the forefront of the common-law world of developing new techniques to manage expert evidence. These techniques include formalising the requirements of expert reports in court and arbitration orders and protocols, the taking of concurrent evidence on discrete topics in a hearing, and pre-hearing conferences (or conclaves) of experts.
Expert conferences are generally regarded as a worthwhile way of endeavouring to narrow the issues in dispute between experts. They are typically held “without prejudice”, and often in the absence of lawyers. The task of an expert conference is generally to produce a joint report responding to questions defined by the parties. Where the experts disagree, they are each required to articulate their position, and the reasons why they disagree with the other experts. The “deliverable” of an experts’ conference is a joint report that becomes part of the evidence in the dispute.
Experts’ conferences are sometimes chaired by an independent person, the Facilitator. A Facilitator who can understand the technical issues discussed by the experts in conference can assist them to articulate their positions, and express them in a way that is most helpful to the dispute Tribunal. An independent Facilitator may also provide a check that the language used by the technical experts in the joint report is readily understandable to laypersons. The skills required of a Facilitator are typically those of ADR practitioners experienced in complex technical disputes: understanding of the relevant technical issues, the law and the contract, and mediation-type communication skills to assist the experts in establishing common ground and agreeing the issues that they can.