Expert Determination

 

Expert determination is “a method of dispute resolution in which an independent impartial Expert is engaged by the disputing parties to determine those disputed questions of fact and/or law in the reference defined by the parties”.[1]

The most important aspect of expert determination is that it is a creature of contract and therefore depends on the agreement of the disputing parties to “the reference defined by the parties“. It is therefore a very flexible process that can be structured for the needs of the parties and their particular dispute.

Expert determination can be non-binding, in which case the parties have a choice as to whether or not they will adopt the Expert’s determination of the parties’ legal rights in the dispute. In a binding expert determination, the Expert’s determination may be immediately binding on the parties, or it may only become binding if neither party raises an objection to it within a defined period of time.

Expert determination is particularly suitable to the resolution of disputes (or specific aspects of disputes) that are technically complex and require an understanding and familiarity with modern technology and processes. As a method of ADR that determines the parties’ rights under the contract and according to the law, it is essential for the Expert to have sound legal knowledge, as well as expertise in managing the various steps of the process.

 

Expert Facilitation

 

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.

[1] Philip Loots and Donald Charrett, Practical Guide to Engineering and Construction Contracts (2009)