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Everyone into the hot tub

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Expert meetings (Hot Tubbing) is the new face of litigation support. Learn how to best use the Hot Tub experience to settle your dispute.

Published in: Law
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Everyone into the hot tub

  1. 1. Gerald R. (Jerry) Genge, P.Eng., C.Eng., BDS, BSSO, C.Arb. Q.Med. ArbiTECH ADR
  2. 2. What is Hot- Tubbing? » Premise  Mutual examination of other expert’s to understand their position  Common or at least consensus agreement on technical points  Abbreviate the time to resolution through “understanding” and “appreciation” of viewpoints ArbiTECH ADR
  3. 3. What actually happens? ArbiTECH ADR
  4. 4. What actually happens? » Alphas gotta howl  Assert dominance ArbiTECH ADR
  5. 5. What actually happens? » Alphas gotta win  Assert dominance  Protect and argue their position ArbiTECH ADR
  6. 6. What actually happens? » Alphas gotta build packs  Assert dominance  Protect their position  Seek allies (at least superficially) ArbiTECH ADR
  7. 7. What actually happens? » Alphas must attack  Assert dominance  Protect their position  Seek allies  Shoot down other positions ArbiTECH ADR
  8. 8. What actually happens? » Alphas don’t want to listen  Assert dominance  Protect their position  Seek allies  Shoot down other positions  Ignore others’ perspective ArbiTECH ADR
  9. 9. What actually happens? » Alphas can be trouble  Assert dominance  Protect their position  Seek allies  Shoot down other positions  Ignore others’ perspective  Frustrate the intended outcome ArbiTECH ADR
  10. 10. Why does hot tubbing have trouble working? » It’s a good idea …but… ArbiTECH ADR
  11. 11. You are SO WRONG!! » Anxiety of the Hot Tub must be neutralized…  Expert opinion can be embarrassing to the expert ArbiTECH ADR
  12. 12. Hot Tub Facilitator » Removing the threat…  Introduce a Team “coach” or “Facilitator” who is not a competitor in the arena ArbiTECH ADR
  13. 13. Hot Tub (Peer) Facilitation » Removing the threat…  Introduce a Team “coach” or “Facilitator” who is not a competitor in the arena  And …who is not dominant themselves ArbiTECH ADR
  14. 14. Hot Tub (Peer) Facilitation » Removing the threat…  Introduce a Team “coach” or “Facilitator” who is not a competitor in the arena  And ….who is not dominant themselves  And …. has the approval of the experts at the table ArbiTECH ADR
  15. 15. Hot Tub (Peer) Facilitation » Removing the threat…  Introduce a Team “coach” or “Facilitator” who is not a competitor in the arena  And ….who is not dominant themselves  And …. has the approval of the experts at the table  And … has facilitation experience ArbiTECH ADR
  16. 16. » Minimize external control  Lawyers… must “buy in” to the idea Hot Tub (Peer) Facilitation I Love it! ArbiTECH ADR
  17. 17. » Minimize external control  Lawyers… must “buy in” to the idea  ….There has been varying degrees of “buy in” Hot Tub (Peer) Facilitation I’m losing Control! ArbiTECH ADR
  18. 18. » Minimize face loss  Situation must allow experts to not worry about contrary opinion Hot Tub (Peer) Facilitation OMG, they found me out! ArbiTECH ADR
  19. 19. » Minimize face loss  Situation must allow experts to not worry about contrary opinion  And… should be able to change an opinion without anxiety Hot Tub (Peer) Facilitation I’ll never work again! ArbiTECH ADR
  20. 20. » Minimize face loss  Situation must allow experts to not worry about contrary opinion  And… should be able to change an opinion without anxiety  Reduce the heavy emotional “investment” in their opinion Hot Tub (Peer) Facilitation ArbiTECH ADR
  21. 21. » Start earlier  Why wait until the expert has reported their findings? Hot Tub (Peer) Facilitation ArbiTECH ADR
  22. 22. » Start earlier  Why wait until the expert has reported their findings?  Why allow reports to mount up with possibly conflicting opinion with varying approaches? Hot Tub (Peer) Facilitation ArbiTECH ADR
  23. 23. » Start earlier  Why wait until the expert has reported their findings?  Why allow reports to mount up with possibly conflicting opinion with varying approaches?  …too say nothing about the heavy financial investment in all the responding reports Hot Tub (Peer) Facilitation ArbiTECH ADR
  24. 24. » But what of the rules?  Lawyers, Engineers alike want to follow rules Hot Tub (Peer) Facilitation ArbiTECH ADR
  25. 25. » But what of the rules?  Lawyers, Engineers alike want to follow rules  But we don’t have a rule book yet….. Hot Tub (Peer) Facilitation ArbiTECH ADR
  26. 26. » But what of the rules?  Lawyers, Engineers alike want to follow rules  But we don’t have a rule book yet…..  So we need to write some procedures or at least some “best practices” for Hot Tubbing…. Hot Tub Facilitation Rules ArbiTECH ADR
  27. 27. » Preliminary Best Practices? 1. Start early – before reports are written 2. Allow experts to speak openly and to question other experts in a non-combative way 3. Decide on assessment parameters and criteria 4. Look for ways to collaborate on investigations and share findings 5. Have progress meetings 6. Report actionable items to all counsel and clients for approval Hot Tub Facilitation ArbiTECH ADR
  28. 28. BUILDING CONSULTANTS INC. Building Science Specialists Contract Administrators Reserve Fund Planners Consulting Engineers Arbitech ADR Arbitration, Mediation, Litigation Support for Engineering and Construction Disputes Hot Tub Facilitator ???

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