Expert Witnesses and Mediation Chapter 22
Kathleen M. Scanlon, a former CPR senior vice president, is of counsel in the New York office of Heller Ehrman White & McAuliffe LLP. This article is excerpted from “A Case for Judicial Accountability: When Courts Add a Settlement Detour to the Traditional Appellate ‘Path’,” 17 Ohio State J. Disp. Resol. 379 (2002).
The California Supreme Court decision Foxgate Homeowners’ Ass’n Inc. v. Bramalea Calif. Inc., 26 Cal.4th 1, 25 P.3d 1117 (2001), is widely known for addressing mediation confidentiality. See ADR Counsel In Box, No. 6 (Alternatives pullout centerfold February 2001)(Oct. 2001 update available in Members Only at www.cpradr.org). Not as well known is the genesis of the controversy – a sanctions motion arising out of a party’s failure to bring its expert witnesses to the mediation.
Foxgate is one example of the overlap between expert witnesses and mediation; an overlap that initially may appear counterintuitive for several reasons. First, mediations typically are not the forums for the presentation of witnesses. Second, it seems incongruous to pair expert witnesses, who typically are costly, with mediation and its cost-saving attributes. For certain types of disputes, however, the participation of an expert witness in mediation can be extremely beneficial.
Sophisticated counsel need to understand when it is beneficial to involve experts in mediation and how to use them effectively in the process.
Why Use Experts?
Mediation offers the unique opportunity to educate the decision-makers about the important elements of each side’s case, including each side’s weaknesses. This exchange occurs in a private, confidential setting, with the assistance of a neutral third party, the mediator. In complex legal or factual cases, including cases where technological issues are key, the participation of expert witnesses in the mediation may be critical to this educational process and the ultimate success of the mediation.