Best Ways for Expert Witnesses to Participate in Mediation

Expert witnesses who participate in mediation typically do so in order to explain or clarify complex technical or scientific issues. Even though expert witnesses are permitted to opine in mediations, in practice, they are rarely called to participate. Bringing an expert witness on board effectively, however, can have a powerful effect on the results of mediation. The right expert, properly prepared, can help the mediator and the parties understand key facts that affect the outcome of a case.

Understanding the Mediation Process

Mediation is a form of alternative dispute resolution (ADR) that helps parties settle disputes without the cost and formality of a trial. In civil litigation, courts often encourage or require mediation before setting a trial date.

In a typical mediation, the disputing parties and their attorneys meet with a neutral mediator—an experienced professional trained in conflict resolution and often knowledgeable about the relevant area of law. The mediator facilitates discussion but does not make binding decisions. Their goal is to guide the parties toward mutually acceptable solutions and potentially narrow the scope of issues for trial.

Expert Support During Mediation Prep

Consulting an expert witness before mediation can sharpen an attorney’s strategy. Experts can help lawyers:

• Understand technical or scientific nuances of the case
• Anticipate issues likely to surface during negotiation
• Evaluate the strengths of the case and the potential weaknesses of the opposition
• Assess the mediation style or track record of specific mediators

In some cases, this preparation alone is enough. In others, including the expert in the mediation itself, may be advantageous. Before doing so, it’s important to review local rules surrounding confidentiality and work product protections. While mediation communications are generally privileged, exceptions and nuances exist.

Expert Witnesses in Action

Bringing an expert into the mediation process can:

• Bolster your case early, prompting opposing parties to take the settlement more seriously
• Help the mediator and parties better understand the facts, especially in complex or technical matters
• Reduce emotional friction by offering an objective, fact-based perspective
• Clarify points of contention, improving communication, and reducing misunderstandings
• Assist in managing client expectations with realistic, evidence-based input

Benefits of Including Experts During Mediation

In mediation, an expert witness can lend credibility and clarity to your arguments, demonstrating the strength of your case early in the process and encouraging fairer settlement discussions.

Mediation often introduces emotional dynamics that don’t surface in court. An expert’s objective, fact-based perspective can help ground the conversation and reduce the influence of emotion or bias. This can be especially useful when dealing with unrealistic expectations, whether from opposing counsel or your own client.

Even attorneys well-versed in technical issues may benefit from having an expert present. The opposing side may not fully grasp these concepts, and the expert’s explanation can help level the playing field. A shared understanding of the facts increases the likelihood of meaningful progress and resolution.

The Power of an Expert Witness

Though not every mediation requires the presence of an expert witness, cases involving technical scientific concepts may greatly benefit. The proper expert, when utilized correctly, can make a significant difference in the success of mediation and of the case as a whole. When a mediation date appears on your calendar, consider how including an expert witness could enhance your argument and strengthen your case.

Connect with an expert witness for your next mediation.