Civil Engineering Reference
In-Depth Information
a mediation where counsel feel comfortable in taking such a back
seat.
Accept that mediations do not settle on legal argument. The legal
framework does provide the backcloth to the dispute but mediation
returns the dispute to a commercial stage where after a time the legal
arguments cease to be key.
Having said all that, this is not a counsel-bashing exercise. As with
everyone in a party's team, they need to be clear about their role and
ensure that they use the opportunity to their client's best advantage.
8.4
Experts
Mediation does not provide the best forum for experts to shine. Usually,
by the time they get to the mediation, each side has obtained an expert's
report; the experts may well have met and agreed areas of common
ground, and what is left are the areas on which they disagree. They are
unlikely to change that just because they are in a mediation and their
client must make a judgement on which of the experts is likely to sway
the judge/arbitrator if the matter does not settle in mediation. Even
if the experts have not met, and common ground may then be agreed
within the mediation, it is rare indeed for experts to agree in total. The
danger is that a party's expert becomes a barrier to settlement because
they are so adamant that their version is the correct one. The party needs
reasons to be flexible, not to become set in a position.
So if experts attend the mediation they need to do the following:
Recognise that they may be idle all day. The mediator may well put
the experts together but the outcome rarely affects the discussions,
and the reason for putting them together may well be to give them
something to keep them occupied.
Avoid becoming a stumbling block to settlement. The expert needs
to understand that his/her report is just one part - and usually a
small part - of the overall picture and that their client will settle on
commercial terms that may not reflect their opinion.
Accept that mediation is not the forum for proving them right or
wrong. So they should avoid being confrontational and recognise
that cooperation is the best way of helping their client to achieve
settlement.
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