An arbitrator with subject matter expertise may be able to resolve technical disputes more efficiently than a judge without that expertise. They can directly question experts and have them work together to narrow disagreements. In cases the author was involved in, bringing all experts together under an arbitrator's guidance reduced the time to submit evidence by half and sometimes led to same-day settlements. While conventional legal processes uphold due process, cases overseen by an expert arbitrator can find resolutions more quickly with less spent on time and costs, while potentially arriving at better answers on liability and damages issues.

1. DOES AN ARBITRATOR WITH SUBJECT MATTER EXPERTISE
GIVE YOU A BETTER DECISION?
By Gerald R. (Jerry) Genge, P.Eng., C.Eng., BDS, BSSO, Q.Med., C.Arb.
On one hand, the civil justice system is underpinned by fairness and equal
opportunity to argue or defend a claim. It has allowed evidence to be weighed
and interpreted, and to form the basis for the opinion and decision by only the judge. The judge may have experience
in many aspects of law; but, they are likely not trained in matters involving technical issues. Sometimes common
sense is enough; but, not always. Enter the “expert”. As an exception to the rules of evidence, the expert may be
granted the right to present an opinion on the technical matters. If well presented the “opinion” evidence should
replace a judge’s personal experience or bias or their indecision with a fair and reasoned expert opinion. A good
expert can do this. A hired gun can not and since the “hired gun” is the usual worry of all other parties, they too
must engage “experts” to respond to the evidence and present their “expert opinion”. On the surface, that all
supports fairness and equality of opportunity. It also slows the process and adds cost as report upon report upon
report is written and produced. The reports may answer only some of the questions about the matter and; thus, be
only part of the picture. They may be long and tedious to read. They may be advocating for a position. They may
not be helpful at all.
On the other hand, an adjudicator or arbitrator with technical subject matter expertise may be able to hear technical
evidence and substantially abbreviate the time it takes to respond. If they are really on their game, they may require
that the experts for all parties meet with a facilitator to pare down the points of disagreement and, without influence
by the advocates or the principals in the claim, establish a fair valuation of damages or specific performance needed
to resolve the issues. Then the expert evidence may be limited to assessing liability which a worthy adjudicator can
probably work out using the contracts or other documents obligations. As another option, the technically astute
arbitrator adjudicator or may choose to get all the experts together as a panel and question them on their reports,
direct certain experts to do certain activities, or give counsel some direction on the limits of the qualifications of the
experts. In the cases that I have done this, the parties were present in the background; the evidence took less than
half the time to submit; the case settled that day.
In the cases where the conventional process is employed, everyone spends a lot of time and money working their
way to the date of a trial. Sometimes the important parties have disappeared. Sometimes the evidence and
memories are stale. But, the due process is upheld. In the cases where someone with subject matter expertise takes
control, time taken, money spent, anxiety experienced, and public exposure presented can be curtailed while
possibly arriving at a better answer to the questions of liability and damages.
Jerry can be reached at 1(800)838-8183 or www.arbitech.ca