by Kerry Hogan-Ross

The stated objectives of joint conference of experts as set out in Practice Note SC Gen 11, are not always achieved. Joint conferences are supposed to, amongst other things, assist the just, quick and cost effective disposal of the proceedings and to reduce the need for experts to attend court to give evidence.

However at times the process results in a report that does not assist the Court and is a waste of time and money. At other times, the joint report can be damaging to a party’s case arising from an unintended concession by an expert.

UCPR 31.24(2)(C) refers to a facilitator as ‘…a person independent of the parties and who may or may not be an expert in relation to the matters in issue.’

In practice, facilitators are usually lawyers, often experienced mediators.

However, facilitating an expert conclave is different to mediating. A mediator encourages compromise so that parties can reach an agreed concluded outcome.

A facilitator encourages discussion and looks for areas of agreement, but does not seek to change or dilute an expert’s opinion, just for the sake of agreement.
Benefits of retaining a facilitator
An order for a joint expert report imposes considerable expense on the parties. Even agreeing on the questions can be torturous and can require an interlocutory application. Experts’ fees for participating in the conference and producing a joint report can be very high. The cost of a facilitator is modest compared with the other costs incurred and ensures the best possible quality report.

Working with the experts

A facilitator can bring structure to the process, something that is often lacking.

Without a facilitator, one of the experts by necessity must chair the conclave. This can give that expert authority, control and influence over the other experts.

A facilitator is neutral […]