Effective and Innovative Use of Experts in Mediation and Arbitration

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Mediation and Arbitration have evolved as effective and/or efficient dispute resolution mechanisms in …

Mediation and Arbitration have evolved as effective and/or efficient dispute resolution mechanisms in
commercial disputes but has the use of experts within these processes evolved along the way? Many
commercial disputes will benefit from expert analysis or opinion to move beyond various technical,
financial, legal or other information impasses. This session will cover the Expert’s, Counsel’s and the
Mediator/Arbitrator’s perspectives on the traditional approach to using experts as well as exploring new
and innovative ideas.

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  • 1. Presentation to Association for Conflict Resolution October 9, 2013 Innovative and Effective Use of Experts in Mediation and Arbitration 1 © - Do Not Copy Without Permission
  • 2. Agenda  Overview & Introductions  Why Talk About Experts in Conflict Resolution  When Do We Need Experts?  Traditional Approaches  Innovations  The Challenges with Innovations  Choosing the Right Experts  Getting the Best from Your Experts  Where To Go from Here?? 2 © - Do Not Copy Without Permission
  • 3. Overview  Why talk about ADR and use of experts? (Norma)  Response from Counsel and Clients to non-traditional legal processes (Mike & Jim)  Changes in the Use of Experts (Norma)  Has it really evolved? Are there new best practices emerging out there? 3 © - Do Not Copy Without Permission
  • 4. When Do We Need Experts?  Traditional Legal Model - Mike – When are experts called for in litigation? – What qualifies them to participate in legal process?  What about Arbitration or Mediation? – Jim, Mike, Norma – Anything different about when to use experts? – Anything different called for in qualifications? 4 © - Do Not Copy Without Permission
  • 5. Traditional Use of Experts in Litigation ….Overview, Strengths & Weaknesses from the 3 viewpoints  Overview - Mike – Pleadings – Depositions – Trial Date – Go get the experts  Litigator’s Perspective of Strengths & Weaknesses  Expert’s Perspectives of Strengths & Weaknesses  Mediator Arbitrator Perspective 5 © - Do Not Copy Without Permission
  • 6. Traditional Use of Experts in Litigation Litigator’s Perspective ...Overview, Strengths & Weaknesses  Strengths – Procedural rules provide consistent framework – Courts have deep experience with experts  Weaknesses – Rules don’t engage experts until late in the process – Involvement is limited to testimony 6 © - Do Not Copy Without Permission
  • 7. Traditional Use of Experts in Litigation Expert’s Perspective ...Overview, Strengths & Weaknesses  Strengths – Lots of disclosure – Predictable timelines – Certainty of Process – Opportunity for Full Expression of Opinion – Fewer Budget Constraints – can turn over any rock  Weaknesses – Requirement to be Perfect – Too much emphasis on the minutiae – Very Time-Consuming and Expensive – Formal and Inflexible – Impractical Solutions – Legal game-playing 7 © - Do Not Copy Without Permission
  • 8. Traditional Use of Experts in Litigation Med/Arb’s Perspective ...Overview, Strengths & Weaknesses  Strengths – Clarifies the issues in dispute – Prepares parties for mediation—know your case – Can participate in mediation – Hot-tubbing  Weaknesses – Tendency to non-disclosure (subject to rules) – Expert battles—need to “win” 8 © - Do Not Copy Without Permission
  • 9. Innovations in Use of Experts – from our Experience … and yours Innovations in What to Use Experts for & How to Use Them  Lawyer’s  Mediator/Arbitrator’s  Expert’s  Audience 9 © - Do Not Copy Without Permission
  • 10. Innovations in Use of Experts – Ideas from Lawyer Innovations in What to Use Experts for & How to Use Them • Initial case assessment/fact investigations • Preparation for record discovery and questioning • Early consultation (the non-independent expert) • Assessment and engagement of independent expert • Negotiations, mediation and arbitration 10 © - Do Not Copy Without Permission
  • 11. Innovations in Use of Experts – Ideas from Mediator/Arbitrator Innovations in What to Use Experts for & How to Use Them  Early engagement, early collaboration  Joint expert—good idea or abrogation?  Experts only meeting—narrow areas of dispute  Identify missing facts  Reduce assumptions 11 © - Do Not Copy Without Permission
  • 12. Innovations in Use of Experts – Ideas from Expert Innovations in What to Use Experts for & How to Use Them  Jointly Retained  Or – Competitive/Collaborative  Advisor to the Expert-Realms of the DR Process – – Provide joint assumptions – Assist with questions to be asked of experts – Sensitivity analysis – Reconciliation of issues between  Assistant to Med/Arb in asking Questions of Experts  Advisory back-room Expert  Early Big-Picture Assessments – without prejudice  Reduce and clarify issues  Materiality concepts  Instructed “What If” Assessments 12 © - Do Not Copy Without Permission
  • 13. Innovations in Use of Experts – Ideas from the AUDIENCE! Ideas on Innovative Use of Experts from the Audience! 13 © - Do Not Copy Without Permission
  • 14. Challenges from Innovative Use of Experts 1. Clarifying Expert’s Role – may be different from what they are used to 2. Limitations in depositions & Document production – when the process is short-cutted and all the information isn’t there 3. Privilege Agreement / Protecting the Expert 4. Can Arb/Med’rs Hire Experts? 5. Joint Process – Dealing with Loss of Control 6. Keeping Process from Getting Bogged Down 14 © - Do Not Copy Without Permission
  • 15. Choosing the Best Experts for your Mediation or Arbitration… 1. Joint v. Separate Retainers 2. Narrow v. Wide Field of Expertise 3. Teacher v. Tech-y 4. Biased v. Objective 5. Flexible v. Firm 6. Big Name v. Small Name 7. Back room v. Front room 15 © - Do Not Copy Without Permission
  • 16. Getting the Best out of Your Expert  Expert’s Perspective  Lawyer’s Perspective  Mediator/Arbitrator’s  Audience 16 © - Do Not Copy Without Permission
  • 17. Getting the Best out of Your Expert – Expert’s Perspective  If Joint Retainer – ensure all sides have agreed on the objectives, role, and process up front – avoid bog-down!  Ensure Role of Expert is Crystal Clear - Objectivity; Materiality; Particular Questions; Legal v. Expert Questions; Instructed Assumptions; Required Sensitivities; Process; Evaluation of Expert;  Retain Early – maximum benefit from advice  Obtain Expert’s Advice - Are we asking the right question; Required facts; Appropriate Timelines  Protect Expert within Process as Appropriate 17 © - Do Not Copy Without Permission
  • 18. Getting the Best out of Your Expert – Lawyer’s Perspective 18 © - Do Not Copy Without Permission  Engage early and often  Preserve objectivity  Remember expert island  Practice makes perfect  Understanding the role and the process
  • 19. Getting the Best out of Your Expert – Mediator/Arbitrator’s Perspective  Mediation: – Help identify and clarify issues – Get experts collaborating on solution – Identify missing information – Calming influence  Arbitration – Prepare as in litigation – Avoid defensiveness – Teach, be methodical – Present great take-away material—someone read it later! 19 © - Do Not Copy Without Permission
  • 20. Conclusion  Where do we go from here?  Questions 20 © - Do Not Copy Without Permission
  • 21. Michael Mestinsek - Bio Michael Mestinsek is a partner and practice group leader for commercial litigation in Stikeman Elliott's Calgary office. Mr. Mestinsek represents domestic and international clients in all areas of commercial litigation and dispute resolution, including matters involving oil and gas, corporate governance and oppression, product liability, class actions, securities, commercial real estate, insurance, professional negligence and catastrophic loss. Mr. Mestinsek is a member of the Calgary, Canadian and American Bar Associations, the Professional Liability Underwriters Society (PLUS), the Defence Research Institute (DRI) and the Kappa Alpha Literary Society Alumni Association. He is a member of the board for Helios Corporation and the John Hart Hunter Educational Foundation (Canada and U.S.). He is a frequent lecturer at the Bar Admission Course and for the Legal Education Society of Alberta (LESA) and was appointed to the Board of Directors of LESA in September, 2010. He has given numerous industry presentations and authored articles in the areas of commercial litigation, insurance law, professional liability, corporate governance, shareholders rights and securities litigation. Contact Information 403) 266-9078 mmestinsek@stikeman.com 21 © - Do Not Copy Without Permission
  • 22. Jim McCartney - Bio Jim has mediated or arbitrated more than 700 disputes involving commercial, industrial, public & residential construction, professional negligence, franchise agreements, fatalities/disability/serious injury, employment, corporate dissolution, debt, shareholder agreements, trusts, tenancy, disability, insurance, industrial land sales, government contracts, fires, pipelines, municipal subdivision, petroleum/coal exploration & development rights and other matters. He is a Chartered Mediator and Chartered Arbitrator, has been President of the Alberta Arbitration and Mediation Society, and is a Director of the ADR Institute of Canada. He is on the mediation rosters of the Provincial Court, the General Insurance OmbudService, the Alberta Land Surveyors Association, and the ERCB. He is on the arbitration rosters of the Canadian Transportation Agency, the Better Business Bureau, the Alberta New Home Warranty Program, the AIT Alberta Bid Protest Panel, an Oil Sands Dispute Review Committee, and Chair of three NEB Pipeline Arbitration Committees. Mr. McCartney has been counsel to, and a director of, EIG Ltd since 2005 and became Chair of the Board in 2009. A lawyer for 40 years, Jim practiced civil litigation involving commercial and tort law at all court levels. He maintains professional liability insurance and regularly attends and presents at continuing education courses. Contact Information (403) 861-2700 jim@mccartneyadr.com 22 © - Do Not Copy Without Permission
  • 23. Norma Reimer - Bio Norma Reimer, CA, CBV (Chartered Accountant, Chartered Business Valuator) President, Trek Financial and Valuation Advisors Ltd. Norma has provided valuation and financial damages analysis services for the last 25 years. As a professional valuator, her experience has included many different industries and many different types of dispute resolution approaches. She has provided services to assist in negotiation, mediation, arbitration, litigation, and collaborative law disputes. Norma’s work has spanned financial issues in high conflict divorce through to multi-million dollar insurance/litigation claims for business. Norma has testified before the Court of Queen’s Bench, Alberta as a financial expert. Norma obtained mediation training in 1992 and at that time became a big proponent of appropriate dispute resolution. She has volunteered with the Calgary Chamber Dispute Resolution Committee, is past Treasurer for Family Mediation Canada, and is a partner with Social Venture Partners. She has taught business valuation basics to the Legal Education Society of Alberta (mediation course); Canadian Bar Association, Civil Section, Red Deer Chapter; High Court Judges and Magistrates of Trinidad and Tobago; and Calgary Association of CMA’s; as well as to various law firms. She has also presented Mediation Experiences with the Petroleum Joint Venture Association and the Calgary Chapter of Chartered Business Valuators. Norma’s Contact Information – 403-520-3780 ext 23; nreimer@trekbusiness.com 23 © - Do Not Copy Without Permission