In complex matters, particularly those involving construction, one of the costs usually incurred by the parties is expert evidence and testimony. How expert evidence and testimony is managed can have a direct impact on the cost and length of the arbitration process. Before considering how to achieve these savings, one should first ask why experts are used. The purpose of expert reports and testimony is to assist the arbitration panel’s deliberations and specifically facilitate the panel’s understanding of the technical issues. To be of real assistance, experts must be independent, objective and not have any interest in the outcome of the arbitration.
This article discusses the arbitration rules concerning the arbitrator’s obligation to conduct the proceeding in an efficient and cost-effective manner, the rules pertaining to the use of tribunal experts, and methods of using of experts in arbitration to streamline and narrow the issues and present expert testimony more effectively, and thus, save time.
I. Arbitration Rules and Case Management
The established arbitration institutions have rules and procedures in place that give arbitrators wide discretion in the conduct of the proceeding and encourage them (as well as the parties) to conduct the arbitration process in a manner that is cost-effective and, efficient. For example, Rule R-33(b) of the American Arbitration Association (AAA) Construction Industry Arbitration Rules provides, “The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view toward expediting the resolution of the dispute.…”