The stated objectives of joint conference of experts as set out in Practice Note SC Gen 11, are not always achieved. Joint conferences are supposed to, amongst other things, assist the just, quick and cost effective disposal of the proceedings and to reduce the need for experts to attend court to give evidence.
However at times the process results in a report that does not assist the Court and is a waste of time and money. At other times, the joint report can be damaging to a party’s case arising from an unintended concession by an expert.
UCPR 31.24(2)(C) refers to a facilitator as ‘…a person independent of the parties and who may or may not be an expert in relation to the matters in issue.’
In practice, facilitators are usually lawyers, often experienced mediators.
However, facilitating an expert conclave is different to mediating. A mediator encourages compromise so that parties can reach an agreed concluded outcome.
A facilitator encourages discussion and looks for areas of agreement, but does not seek to change or dilute an expert’s opinion, just for the sake of agreement.
Benefits of retaining a facilitator
An order for a joint expert report imposes considerable expense on the parties. Even agreeing on the questions can be torturous and can require an interlocutory application. Experts’ fees for participating in the conference and producing a joint report can be very high. The cost of a facilitator is modest compared with the other costs incurred and ensures the best possible quality report.
Working with the experts
A facilitator can bring structure to the process, something that is often lacking.
Without a facilitator, one of the experts by necessity must chair the conclave. This can give that expert authority, control and influence over the other experts.
A facilitator is neutral and has the ability to balance competing interests and personalities and deal with issues such as:
- Unequal professional standing can create problems, for instance an expert may seek approval from, or be impressed by, a more senior professional.
- Sometimes the experts can be old friends and colleagues and want to talk amongst themselves off topic. Conversely, they may be long time antagonists or competitors.
- A facilitator can rein in discussions and emotions and direct the experts’ attention back to answering the questions.
- Some experts do not understand the process and believe that consensus is the goal of the conclave.
- The ability to articulate will differ from expert to expert and some may need to have their views drawn out so their opinion can be expressed in appropriate form.
- Some experts do not like, or agree with, the joint report process and may not wish to engage in it meaningfully.
An important role of the facilitator is ensuring the experts understand the questions and where the question is not clear, the facilitator can guide the experts to reach agreement as to its meaning.
Finalising the report
Legal practitioners are not permitted to have contact with their experts after the conclave has commenced and before the joint report is signed off. The process can take longer than expected. A facilitator can keep the legal practitioners apprised of progress and advise the reason for any delays.
Obtaining continuing cooperation from a group of busy professionals after the conclave is like the proverbial herding of cats. While it is desirable for expert reports to be completed at the conclave this is difficult and rarely achieved.
If, as is recommended, a transcription service is used, it takes a day or so before the first draft is available. The facilitator receives the draft and amends it in style but not in content and then circulates it, often with questions for each expert. The facilitator then makes further amendments, again, in style only, never content, and circulates the final for sign off.
What can legal practitioners do to optimise the process?
Pay regard to the Practice Note SC, and give the experts a copy.
Focus on having clear, concise questions, avoiding potentially confusing things like double negatives and cascading scenarios/options.
Try and avoid repetitive questions.
Ensure your experts know what is expected of them, including the likelihood that they will need to be available after the conference to finalise and signoff on the report. So find out about their commitments or holidays
Provide the facilitator with the questions and a bundle of documents in advance of the conclave so that they can adequately prepare for it.
For further information, feel free to contact me via the contact details below.
Kerry Hogan-Ross Mediations