I. Introduction

There are two general approaches to using experts in mediation: separate

retention and joint, shared retention. Under the former approach, the parties

each retain their own expert to assemble information concerning the issues in

dispute. The expert may also prepare various types of analyses to aid the

retaining party in understanding the case, such as a “scheduling/delay”

analysis, or an “accounting/damages” analysis. The expert’s role at the

mediation is up to the party. The expert may either present the party’s claim

or defense at the mediation, or act as an observer, advising the party in private

sessions regarding the strengths and weaknesses of other parties’ theories,

supporting documentation, and demonstrative evidence.

Under the shared retention approach, the parties agree to jointly

retain an expert to provide information and prepare graphics on agreedupon

subjects, which information and graphics both parties expect to rely

upon during the negotiations.

II. Why Use an Expert?

To achieve the necessary degree of familiarity with the facts prior to

the mediation, data collection and specialized analysis must take place in

a relatively short period of time. This must include an understanding of

the relationship between the alleged cause and the alleged damages,

supported by calculations for each severable claim or issue. Using a