Facilitation of expert witness conclaves and production of the joint report
Facilitation of an expert witness conclave and production of a joint report in NSW, is in accordance with the provisions and requirements of the Uniform Civil Procedure Rules 2005 NSW, namely:
- – Expert Witness Code of Conduct – (set out in Schedule 7 of the UCPR);
- – Division 2 of Part 31 of the UCPR, (regarding expert witnesses and a joint report); and
- – Practice Note No. SC Gen 11 (08/17/2005) regarding Joint Conferences of Expert Witnesses.
My expertise in medico-legal litigation acting for both sides at Partner level, lends well to my role as a Facilitator and I am retained in this role on a regular basis.
In respect of such matters, it is my preference to act as both facilitator and scribe (ie administrative support is not required), as I find that it is more conducive to the detail of the experts’ opinions being captured and the report being able to be finalised and signed by the experts on the same day as the conclave, if possible and appropriate.
That said, some conclaves can be quite complicated and require a series of meetings and draft reports before the joint report is finalised. For example: a conclave of numerous experts by teleconference across different time zones in Brisbane, Sydney and Melbourne. This is also a prime example of why transcript services (where numerous experts are speaking at once and are indistinguishable to a third party typist) can often not be utilised.
In conducting this role I appreciate the importance of:
- – a thorough understanding of the brief and the legal issues;
- – guiding the experts in their obligations pursuant to the relevant legislation, court rules and practice notes;
- – ensuring the experts address the questions as put by the parties; and
- – working within the various time constraints of the respective experts to bring the joint report to completion as quickly and efficiently as possible whilst facilitating each expert to consider and express their views without undue time pressure.
In my role as facilitator I undertake to assist the Parties’ experts as follows:
- – To chair and facilitate the joint conclave in a neutral manner and to ensure procedural fairness to all participants;
- – To oversee the process of the joint conclave and preparation of the joint report and NOT to participate in the substantive discussion;
- – To ensure that the joint conclave duly addresses all issues and/or questions identified in the joint list prepared by the Parties’ legal teams;
- – To ensure that the joint report specifies the matters agreed and also captures accurately the basis of any difference of opinion or non-agreement of the experts with respect to any of the issues posed;
- – To ensure that the joint report specifies other questions which any of the experts believe would be useful for them to consider, (pursuant to clause 17 of the Supreme Court NSW Practice Note);
- – To remind and/or explain to the experts where necessary, their obligations under clause 1.2 of the Code, to exercise their independent, professional judgement;
- – To remind and/or explain to the experts where necessary, their obligations to accept as fact the matters states on witness statements or assumptions submitted to them and that it is not their role to decide any disputed question of fact or the credibility of any witness.
- – Where there are competing assumptions to be made in the alternative, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer (pursuant to clause 19 of the Practice Note); and
- – To impose or keep a discipline in the conclave, or a structure which ensures the completion of the task.
I will take the necessary steps (including to liaise with the Parties’ administrative staff designated to support the conclave) to ensure that the joint report is finalised and signed by all participating experts immediately at the conclusion of the conclave and otherwise as soon as practicable thereafter – and then provided to the Parties’ legal teams. In doing so, I will in no uncertain terms seek to apply undue pressure on the experts to sign their report before they have indicated that they are ready and content to do so.
I will inform the Parties’ legal teams if, pursuant to UCPR Rule 31.25(2), an expert directed to confer intends to apply to the Court for further directions.
I will maintain confidentiality in all documents and information to which I am privy in this matter, having regard to Rule 31.24(6) and Rule 31.26(3) & (4) UCPR.
Some tips and traps that I have observed in the facilitator role, which may assist instructing solicitors in preparing for the process include the following:
- – You can’t afford not to prepare properly. So much can turn on this process. Allow plenty of time before the date that you need the joint report/s to prepare the questions and assumptions, brief the experts, and for the experts to bring the report to completion. Complicated matters may require many weeks from start to finish.
Be really careful about the questions:
- – what you are asking (ie what you are hoping to elicit)
- – the precise wording
- – the number of questions asked
- eg: a broad question may produce an unexpected answer. A narrow question may produce an answer that is very specific but which does not enable the parties to properly understand the experts’ opinions on related issues of significance. Is this what you want?
- – Consider conferring with your expert/s about the questions that should be asked, including their precise wording. This should guard against adverse surprise answers regarding the legal issues and also ensure the questions are relevant re the requirement to use any particular medical terminology that may be relevant to the issues but “lost in translation” to the lawyers unless properly understood in advance.
- – Get the briefs, questions and assumptions to the experts well ahead of time. And make sure that all experts get the same brief. – you don’t want poorly-prepared, frustrated experts.
- – Think about what you are providing in the briefs – particularly if there is content the experts haven’t seen before. Again, consider conferring with your expert/s first.
- – Don’t under estimate how long you think the experts will need for the conference and to prepare the joint report. (5 pages of assumptions, and multiple assumptions, with 20 questions that have multiple components to each one – will take longer than a 2-3 hour conference).
- – At the same time, be mindful of the potential fatigue factor that can occur in an expert conclave beyond 2-3 hours. Frustration may occur when fatigue sets in with questions that are lengthy, multi-sectioned, poorly worded, or questions that appear to be repetitive (where the important distinction between single words eg possible v probable) may not be appreciated until explained by the facilitator. Consider scheduling more than 1 expert conclave if the issues are lengthy and complicated.
Finally, it is always very constructive for the parties to first consider and then confer with the facilitator beforehand regarding issues such as timing for the conclave, when the report is required, and whether the parties wish the experts to provide succinct answers with or without more detailed reasoning.
Some unprompted correspondence in 2018 from a party solicitor in one matter and from an expert in a separate matter had the following to say:
….I think you did an excellent job in efficiently managing a number of experts to obtain the conclave reports in a timely manner in difficult circumstances with not the best cooperation between the parties. I certainly see the value in a facilitator, particularly in matters such as this one. Thanks very much for your help! Regards, X (instructing solicitor in a 3 party matter)
…Many thanks again for your assistance in this matter. I have found your input extremely useful, professional, obviously well informed and delivered with great skill and consideration. You seem from my perspective to be able to master the line between being impartial yet engaged with what (the opposing expert) and I have wanted to say. Thank you very much. Best wishes, X, (expert witness)
Mediation & facilitated negotiation of litigated and informal matters
- Medical & other professional negligence litigation
- Institutional & carer abuse claims – both litigated and non-litigated
- Occupier & vicarious liability
- Workplace injury damages claims
- Motor vehicle accident personal injury damages claims
- Family provisions / Wills & Estate disputes
- Commercial disputes – both litigated and pursuant to contract dispute resolution clauses before legal representation
- Mediation of workplace conflict (applying the NMAS Mediation model)
I believe that early mediation (not “at the door-of-the-Court”), by a skilled mediator should be readily available and affordable. Complicating factors to a dispute are rarely confined to the value of the claim and it is often the case that the lower monetary disputes need mediation as readily as the Supreme Court matters.
I also believe that “ISC’s” (Informal Settlement Conferences) are often unsuccessful because the mere exchange of offers and arguments is not sufficient to resolve the dispute. A mediator’s role in re-framing and de-toxifying the adversarial nature of the dispute during the course of negotiations and keeping the parties at the table until resolution or genuine impasse – is what makes the crucial difference. You can read more on my reasoning and the sound economics of it all, here.
In relation to litigated matters, mediation is usually an invaluable process even if the claim does not settle on the day as it narrows the issues in dispute and the matter often ends up being resolved shortly after.
In response to these issues, I offer a flexible and cost effective mediation service that offers to the parties:
- an all-inclusive mediation service priced from $4,000 + GST for a 1 day mediation depending on the complexity of the matter. This includes preparation time, any pre-mediation meetings / teleconferences and travel time outside Sydney (which does not involve driving);
- a mediator willing to travel to suburban and regional areas to conduct the mediation.
- See my “Mediation Protocol” here for complete terms – (which is in accordance with NMAS and Law Society NSW standard terms).
I am a strong and committed believer in the effectiveness of mediation. Mediation and other forms of ADR provide the parties with maximum autonomy in determining the outcome of their dispute, as well as the opportunity to minimise adverse factors associated with any dispute: time, effort, stress and financial cost.
Having acted for both plaintiffs and defendants, I have acquired unique insight to numerous aspects of the dispute resolution process, crucial to which is an understanding of the psychological aspects involved in successful negotiation. This understanding allows me to provide constructive, sensitive and effective guidance of the parties throughout the mediation process.
To witness the “shift” between the parties towards a mutual understanding and intent to map out a practical way ahead, when at the start of the mediation they were diametrically opposed: is to appreciate the true utility of mediation.
From the commencement of my legal career in the mid 1990’s, I was fortunate enough to participate in a great number of mediations conducted by the great Sir Laurence Street, where I learned how powerful a tool it can be. The provision of a supportive environment that facilitates the “victims” to a dispute to feel heard and validated, in turn allows for a robust reality testing of the various options for dispute resolution, so that both parties are able to reach an agreement that they can live with. The claimant can move on with their life and the respondent can close the books.
Mediation is a voluntary process that facilitates the parties to work together in an attempt to reach an agreement. If the dispute escalates and is not resolved, the worst-case scenario outcome is an imposed outcome by the Court by way of a judgement against the party, as well as the immense inconvenience, disruption, stress and expense associated.
Mediation, on the other hand, allows the parties to control the dispute and to resolve it on their own terms by negotiating an agreement. Mediated agreements are more likely to be practical and robust, because the parties themselves have determined the outcome.
Mediation begins with the parties to a dispute agreeing to mediate, setting ground rules and selecting a mediator. The mediation then involves parties trying to understand what is important to each side, clarifying what is negotiable, exchanging information and identifying and exploring possible solutions. At the end of a successful mediation, parties will put their solutions and agreement down on paper.
- To be truly independent: the mediator must have no stake in the outcome of the dispute and no conflict of interests in conducting the mediation
- To help the parties identify the issues
- To help the parties understand each other’s interests and position better
- To encourage the parties to look at options around how they might resolve the dispute and hopefully, to reach an agreement
It is NOT the role of a Mediator to provide legal or other advice to the parties about the dispute, to determine any facts in dispute, to make any judgements about the respective merits of the dispute, nor to suggest ways in which the parties might resolve the dispute. That is, of course, unless the parties have requested the Mediator to perform an evaluative role and the Mediator has the requisite qualifications and expertise to do so.
- To remain in control of the dispute and its outcome, (as opposed to a Court-imposed judgement)
- To discuss and negotiate all aspects of the dispute on a confidential basis that will not adversely effect the parties’ interests if the dispute is not resolved at mediation and is required to proceed through formal channels
- To settle their dispute cost effectively
In recent years, because Mediation is so effective, various mechanisms (such as the Courts, dispute resolution clauses in contracts) require compulsory participation in a Mediation before progression to more formal, time-consuming and expensive means of dispute resolution. Once initiated, the process in every way is voluntary through to the end of the Mediation however the parties should always participate in good faith.
Mediation is a structured approach to dispute resolution.
The model endorsed by the Australian, New Zealand and Asia Pacific region accreditation body Resolution Institute, is an interest-based negotiation model essentially involving 3 phases, as follows:
Permission of both parties to mediate – Making sure that both parties are willing to make process work. – Selecting the mediator – Agreeing the ground rules – Agreeing who will attend – Both parties agreeing to mediation agreement – Initial discussions with the mediator in a pre-mediation conference (unless agreed to be unnecessary)
Mediator explains the rules and process – Mediator invites the parties to introduce themselves and explain briefly their position and what they would like to achieve through the mediation- Mediator summarises and reflects on the parties’ introductory issues and then – Identifies & Suggests the key issues for exploration.
Opening up the channels of communication between the parties –Balanced interaction facilitated by the Mediator – Uncovering interests – Exchanging information – Discussion and Understanding of what is important to each side – Developing an understanding between the parties of each other’s perceptions of the dispute and their respective strengths and weaknesses. – Building trust between parties and the mediator. Mediator facilitates constructive communication on all agenda items, and focus on the present and future – shifting from focus on the past.
Confidential private sessions with the Mediator – further discussion of what is important (facts, interests, feelings, outcomes) – Exploring / Clarifying what is negotiable. – Identifying options and possible solutions that the parties may be prepared to discuss on resumption of the joint session.
Exploration of possible options and solutions. – Testing what is important. – Dividing the issues into their material parts – Overcoming any deadlock – Emergence of a negotiated resolution of the dispute.
Agreeing on a solution. – Putting the solution and agreement down on paper – Making sure that all parties are satisfied. – Ensure that all points are covered. – Finding a solution to any future relationship between parties if necessary.
Depending on the nature of the dispute, joint sessions may be minimized and parties communicate through the Mediator and the parties’ legal advisers, if applicable.
This will vary in accordance with the respective party’s wishes. However the role of legal advisers is essentially:
- To advise and assist their clients in the course of the Mediation;
- To discuss with the mediator, with each other and with their respective clients, such legal, procedural or practical matters as the Mediator might suggest, or as their clients might wish; and
- To prepare the terms of settlement or heads of agreement recording the agreement reached at the end of the Mediation for signature by the parties prior to departure.
Remember the whole process is entirely voluntary (unless imposed by the Court), confidential (as far as the law allows) and without prejudice. There is an expectation that the parties come to Mediation with a view to negotiating in good faith towards achieving a settlement of the dispute.
- All discussions during the Mediation in joint session;
- All discussions during the Mediation in the respective private sessions with the Mediator;
- All documents created for the purpose of the Mediation.
There are some exceptions to the confidentiality rule, (eg if the Mediator is required to confirm the parties’ participation to the Court in a Court-ordered mediation; if a criminal act is disclosed by one of the parties during the course of the mediation).
- Explain the process clearly
- Be neutral and balanced at all times
- Be sensitive and cognisant of the parties who are often under a great deal of stress and are apprehensive about the dispute and the Mediation process itself
- Facilitate the parties to communicate openly, to explore the issues in detail and to behave in a respectful manner
- Facilitate the parties to be and to feel heard and understood, so that there can be a functional shifting from the past, towards a focus on the present and the future – and an agreed outcome
- Manage any power imbalances and threatened deadlocks, to keep the process moving constructively
- Not make suggestions to the parties about how they might resolve the dispute
- Not improperly encourage the parties to continue negotiations if there is a deadlock
- Not regard the inability to reach an agreement at the Mediation with a sense of failure on the part of the Mediator
Mediation is an invaluable process in narrowing the issues in dispute and in focusing the parties on resolving their dispute. In many cases when an agreement cannot be reached at the Mediation itself, a dispute often ends up being resolved soon after.
Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement. – Australian Disputes Centre
I have 20+ years of experience as a litigation lawyer in a range of areas mainly concerning professional and government liability, and have practiced at Partnership level. My hourly rate would normally be well in excess of $500 p/h. That said, I became a mediator and facilitator because I believe such services should be responsive to the parties’ needs and affordable. For Mediations I charge a flat rate commencing at $4,000 + GST, being for a 1 day matter where there are 2 sides with separate legal representation. An additional charge may apply per party separately represented, if there is no prior sharing agreement. My flat rate includes all reading & preparation (including pre-mediation teleconferences), as well as travel time in most cases. For Expert Witness Conclaves I charge an hourly rate of $500 + GST for facilitation of the conclave itself, and a lesser rate of $350 + GST for preparation time. I prefer to also act as scribe in preparing the report without transcript or secretarial support services for a quicker, more accurate and cost effective outcome. My approach to the professional fees to be charged in the particular circumstances is with the goal that my clients will consider that they are receiving excellent value for the quality of service that I pride myself on.
Mediation is a voluntary process that facilitates the parties to work together in an attempt to reach an agreement. It allows the parties to control the dispute and its outcome, rather than having an outcome imposed on them – eg by the Court. Mediation also allows the parties to address many other issues that often drive the dispute. It’s rarely just about the financial bottom line. It enables outcomes that just aren’t possible in Court.
Being able to realize that the other person has a valid point, even if you disagree with it, that’s the first step towards maturity.” – Oliver Gaspirtz