Expert Determination

Expert determination is a consensual process whereby an independent third-party is appointed as an expert in the required subject matter. The expert determiner is not acting as a judge or mediator.

The impartial expert will hear both parties and their decision will be binding, unless the parties agreed otherwise. In principle, the determination of an expert is binding and as such it has contractual effect between the parties. Alternatively, by party agreement, the determination may have effect as a recommendation to the parties.

Parties may together choose who is appointed, or they can use an appointing body such as CIArb or CEDR. This process is entirely confidential.

Advantages of Expert Determination

Expert determination is very useful for resolving disputes of a technical nature where the issue at hand is one of fact rather than law requiring an expert to form a decision.

The expert determiner will generally be a specialist or a person with extensive experience or knowledge in the area of the dispute.

Depending on the dispute more than one expert may be required.

Expert determination is a flexible process

Expert determination can operate on a more informal and expeditious manner than broader processes such as arbitration. Expert determination may be used on a stand-alone basis or in connection with an arbitration, mediation or court case.

In an expert determination, the expert constitutes the tribunal and makes the decision, and they are not a witness.

Expert determination is a straightforward process

This process can be used as a shortcut to a binding decision, because it is simpler and cheaper than a court case. There is no requirement to prepare pleadings, conduct detailed investigation of documents, cross-examine witnesses or conduct trial-type hearings.

An expert determiner does not need to refer back to the parties before making their decision. This results in savings of cost and time.

Expert Determination and other ADR processes

Expert determination is often used in conjunction with other dispute resolution processes, and it can be used as an adjunct to mediation. This can arise where there is a need for a party independent of the mediator(s) to give a binding decision on an important issue. The use of expert determination provides the parties with the means of resolving an aspect of a dispute about which they would prefer not to negotiate. Obtaining an expert’s ruling can break an impasse and allow the mediation to proceed without any impasse and it allows the mediator to remain completely impartial.

Early Neutral Evaluation

Arguably, an initial form of Expert Determination is Early Neutral Evaluation (ENE) whereby the parties to a dispute jointly instruct an independent and neutral party to consider the relevant facts and law of a dispute and provide an opinion on the relative merits of each party’s case.

Whereas the purpose of Expert Determination is to evaluate a final outcome, ENE assesses each party’s position regarding the overall dispute leaving the parties to decide whether to accept the findings and reach an agreement, or alternatively not be bound by the ENE analysis but nevertheless it may lead to modification to one or more of the party’s overall position in the dispute in how they approach other forms of Alternative Dispute Resolution, or litigation.

The parties can agree the evaluation to be binding or non-binding. ENE can help narrow the differences on issues of evidence and law to encourage the parties to negotiate, narrow the issues in dispute, mediate or use another form of dispute resolution.

If a settlement is not reached, the discussions and evaluation will remain confidential and cannot be referred to again by either party in any subsequent trial

Which types of disputes are suitable for ENE?

Currently, Q Chambers will consider disputes in the following areas:-

General contract and commercial disputes; tort claims; intellectual property (not patent disputes); media law.

Contact

For initial guidance on whether your dispute might benefit from Expert Determination or Early Neutral Evaluation as well as about our fees, please visit the contact page to see how you can get in touch.