In the expert driven case, that case in which the decision made by the trier of fact is likely to be based on the testimony of experts, as much or more than that of the parties or other witnesses involved, it may be of significant benefit to have a mediation day focused on your experts only.

This is not a day for the squeamish, but one to get it all out on the table, and is most practical where all parties truly want to resolve the dispute or narrow the issues before trial.   In most cases, this usually won’t be able to happen until trial is imminent, when discovery is complete, expert designations have been made, expert evaluations have been completed and depositions, if any, have been taken.

The intent of this session is to bring the experts together to see what they can agree on and reach resolution on those issues prior to trial.  This is particularly valuable where you are involved in a case with highly complex issues that could confuse a jury or will take significant time at trial, resulting in significant expense.  When counsel goes to the effort and expense of using experts in mediation, it is a solid indication that the case is being taken seriously, and often will result in full resolution.  If you must go to trial, the simpler and cleaner the case is when it gets there, the more likely you are to end up with a fair result.

Consider gathering the experts together and mediating the strengths and weaknesses of their positions just as you would mediate the strengths and weaknesses of the positions of the party litigants.

 

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