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Alternate Dispute Resolution (ADR) mechanisms are generally designed to deliver time and cost efficiency, procedural flexibility, and confidentiality. However, one key consideration that is often understated is the degree of confidence the chosen ADR method can provide in achieving a fair and reasonable outcome. Many dispute resolution specialists have experienced utterly unexpected results — outcomes that far exceed their worst- or best-case scenarios. This can sometimes be a function of the ADR mechanism selected.
For example, in adjudication, complex decisions must be made within a short timeframe, which carries a risk of “rough justice” due to the speed of the process. In arbitration, arbitrators are generally expected to act impartially and independently, deliver a reasoned decision, and ensure fairness and transparency. However, in large, multi-disciplinary cases, the risk of misinterpreting complex technical issues by the arbitrator may increase, potentially resulting in an award that the losing party does not perceive as fair or reasonable.
That said, certain ADR methods can offer greater confidence in the fairness of the outcome while still preserving time and cost efficiency, procedural flexibility, and confidentiality.
One such mechanism that has seen increasing adoption in recent years is Expert Determination. This involves the joint appointment by the parties of an independent expert to decide a specific dispute. It is particularly effective for complex technical matters like engineering, delay, labor productivity, and valuation disputes, where it can deliver a higher degree of perceived technical fairness.
In real-world instances with several appointments of this nature, notable advantages and disadvantages to this approach have been observed. At the onset, to avoid confusion, it is important to distinguish between three common types of joint expert appointments:
- Joint Expert – A single expert jointly retained by the parties to assist the court or tribunal in reaching its decision (as opposed to each party appointing their own experts).
- Neutral Evaluator – A neutral third party with expertise in the relevant field who provides a non-binding evaluation or opinion.
- Expert Determiner – An independent subject matter expert who uses their specialized knowledge to render a binding decision on the dispute.
In future articles, we will explore these pros and cons and share practical drafting and process tips to help parties get the most from expert determination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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