Subject expert mediator – help or hindrance?

By Henrietta Jackson-Stops

It’s a question that comes up often. Should a mediator be an expert in the subject matter in dispute – or will a generalist do just as well? There are those who will come out firmly in favour of one or the other. My own view is that you should weigh up a number of factors.

 

A question of cost

Cost is, of course, an important factor. Will one of your shortlisted mediators take a long time on the day, at your expense, to follow the conversation?  Might their lack of expertise even be a hindrance to progress, risking the costs invested in the mediation?

And then there are the costs of a non-expert’s additional preparation. Many mediators don’t charge extra for getting up to speed and in fact enjoy doing so – but you will want to know whether that’s the case.

Nevertheless, there’s a difference, which can be important, between ‘swotting up’ on a subject and having experience of it or being an expert.

 

When knowledge gets evaluative

One of the risks of choosing a subject expert mediator is the introduction of the expert mediator’s ‘opinion’. If you have a mediator who is effectively performing an expert determination – albeit with some diplomacy – then the expert for one of the parties (and the appointing solicitor) might become defensive and adversarial, and perspectives can become hardened rather than broadened. You’ve very much strayed into evaluative mediation territory.

That’s not to say that’s wrong. But people should be clear about what they’re asking for and what it is they want.  A more straightforward expert determination might be more suitable, and avoid the risk of falling between two stools.

 

How has the mediator become an expert?

Another question that parties might ask when deciding whether to choose a subject expert for a particular dispute is how has that mediator become an expert, and will they be perceived as neutral by the other party? With a construction dispute, for example, is the mediator an expert because they have a contractor, sub-contractor or client background?

In an IT dispute, has the ‘expert’ mediator come from the supplier side and will they have the trust and confidence of a sensitive opponent?

 

Understanding versus expertise

A few years back, I mediated a case where some centuries-old barns had fallen down because they weren’t properly reinforced during a refurbishment. The structural engineer got the calculations wrong and so was sued.

Would I have the first idea how to carry out structural calculations or to check somebody’s structural calculations? No. Was I able to understand the claimant’s expert’s critique of the defendant’s calculations? Yes.

Bear in mind that when an expert produces a report they are producing it not for another expert but for the judge, who might well have

experience

of disputes in the field (especially in IP, property, technology and construction cases, for example) but will not be an expert.  Also the parties will probably not be experts and will need to understand the arguments if they are to be influenced to compromise.

It’s often enough for mediators to be bright enough to understand the differences on the technical issues and to have the accompanying skills to help illuminate those differences for the parties, and their experts and advisers.

 

Well informed is well chosen

There are a number of factors to weigh up in deciding whether to go ‘expert’ or not.  It will often be worth asking whether the mediator has successfully mediated disputes in the field in question, and to speak with parties or advisers who have been involved.

Most settlements are motivated by the parties’ attitude towards not only the technical issues, but also the legal issues, the factual issues and the commercial issues as well as the personal and the emotional. If you don’t choose a mediator who is across the breadth of all those things then you might be in danger of having a really good technical discussion but not being able to resolve the dispute.  Most importantly you need a mediator who can gain the trust of the parties - they might do that through sharing their expertise of the subject matter or simply using great interpersonal skills.

There are plenty of experts who are great mediators, but I would suggest that they are successful because of their mediation skills rather than their technical skills.