Overview: Lawyers are familiar with the use of expert witnesses. Most disputes in litigation involve a procedural phase for the preparation and exchange of expert reports and interrogation of their opinions. We can turn that “battle” practice into a more immediate and rewarding settlement strategy.
This case study describes the use of a neutral environmental expert (consultant) to confidentially opine on specific issues in dispute, whose deciphering opened the door to settlement. The parties agreed on the neutral, retained neutral under the mediator’s supervision, agreed in advance on the information (reports and such) to be provided to the neutral expert for review, agreed on the specific questions the expert was to answer, agreed on the timing and budget for this engagement and, of course, agreed that any opinions delivered would be kept strictly confidential under the mediation privilege.
The take away: The non-binding opinions of an expert the parties trusted and respected on an issue that divided the parties in settlement removed that impediment and facilitated a settlement of the case