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.
How Mediation Works
Mediation is one form of alternative dispute resolution (ADR) available to help settle legal issues without the expense and burden of a full courtroom trial. In many types of civil litigation, courts will encourage or even require mediation prior to setting a trial date.
During mediation, the parties in a dispute, along with their respective attorneys, meet with a neutral third party mediator. Mediators are typically trained in mediation techniques and have an understanding of the law underlying the dispute. Many mediators are well versed in the practice, with years of experience in mediation.
The mediator does not have the power to adjudicate a particular decision. Rather, the mediator’s role is to help the parties find common ground and resolve as many issues as possible. Through this process, mediation may eliminate the need for a trial, or it may, at least, reduce the number of issues that must be addressed during the trial—particularly if an expert witness is called to participate.
Before Mediation: Sharpen Preparation
Whether or not you decide to include an expert witness in the mediation itself, consulting an expert during preparation can help you hone your knowledge and choose the best mediator for effective mediation.
An expert witness can help educate attorneys on technical and scientific issues that may arise during mediation. By so doing, they can help attorneys better understand the facts of the case and advocate for their clients. An expert witness can also help evaluate potential mediators. Many expert witnesses have participated in mediation before and can provide perspectives on the methods or approach of a particular mediator.
Before making the decision to include an expert witness in mediation, review the applicable rules that govern waiver of confidentiality or work product. Most jurisdictions protect communications that occur during mediation. Nonetheless, understanding any loopholes or ambiguities can help you prepare for mediation, work with opposing counsel, and protect confidential information.
During Mediation: Strengthen Delivery
Including an expert witness in mediation offers several benefits. An attorney who includes an expert witness in mediation can establish the strength of the client’s case sooner in the process, bringing more pressure on opposing parties to settle the claim quickly and fairly.
Because mediation is a less formal process than trial, it leaves room for emotional concerns and objections to guide decision making. While a mediator’s role is to help reduce the impact of emotion, an expert witness can contribute to this process by providing a more objective viewpoint. In doing so, the expert may help to defuse tensions or to mitigate unrealistic expectations held by opposing counsel, opposing parties, or even your own client.
Even attorneys who feel they understand technical or scientific issues well can still improve their position by bringing an expert to mediation. While the attorney may understand the issues, opposing counsel and parties may still be unclear on key points. The expert witness can level the playing field by educating everyone in the room. Common understanding of key facts can help mediation participants reach clearer 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.
