The role of an expert witness can differ dramatically depending on the forum they are testifying in (i.e. trial, arbitration, or mediation.)

Information technology expert witness Brooks Hilliard explains.

Q. Mr. Hilliard, how is the expert witness’s role different at arbitration and mediation?

Unlike arbitration (or trial testimony) the expert’s role in mediation generally does not include sworn testimony.  When parties enter formal mediation voluntarily (i.e., mediation not required by the Court) with at least some desire to reach a settlement agreeable to both parties, which they hope will be as favorable to their interests as possible.  The use of experts in mediation is not common, but when they are used, in my experience it is done to impress (and potentially intimidate) the opposing party with the strength of their case before the serious settlement negotiation begins.

In my experience, mediation is often done early in a case, well before discovery is complete, and before the expert would normally be ready to render opinions.  The expert must be familiar with the case and be able to impress the opposing attorneys and litigants with his or her knowledge, expertise, and potential ability to persuade a jury (or panel of arbitrators) if the mediation does not reach settlement.  Although the opposing party may (or may not) be allowed to ask the expert questions, there is no cross-examination.  While the mediator is neutral in a mediation, it is important to impress him or her as well, because he or she will be the one – after the mediation breaks up into separate party sessions – that explains how your testimony will hurt the opposing party if no settlement is reached.

After initial presentations and joint discussions, when the parties split and the mediator begins going back and forth, the expert may be involved in explaining to his clients why the opposing party’s logic (as it relates to his/her expertise) is or is not valid, and how he or she would be able to counter it in court or arbitration if no settlement can be reached.

Q. What kind of “presentation skills” is permissible and effective at arbitration and mediation?

Arbitration is much more like a trial than it is like mediation.  It is less formal in that there is no jury and everything goes on in a conference room where both parties, the arbitrator(s), the attorneys and the expert generally all sit around the same U-shaped (or box-shaped) conference table.  In my experience, the “presentation skills” options during testimony are not significantly different than they would be in a courtroom.  However, if the expert is doing his or her job well, there can be a lot more back and forth questioning between the arbitrator(s) and the expert witness than would ever be the case with the more formal questions from the Court or jury members in a trial.  PowerPoint presentations and/or demos are fine but, since the objective is to establish enough credibility with the arbitrator(s) that they will want to hear your expert answers to their questions (as opposed to the direct and cross-examination question), I believe “presentation skills” in presenting them could be more detrimental than helpful.

Mediation is a different story.  On the one hand you want your presentation to intimidate the opposing attorneys and their clients, you also need to impress them with how effective a testifying expert you will be if they don’t concede the issues related to your expertise.  Anything and everything is permissible (this is not sworn testimony) as a part of the expert’s presentation and nothing done or said in the mediation session can be used as evidence if the case does not settle.  Since there is no direct or cross, the expert’s presentation is more like an attorney’s opening statement than like court or arbitration testimony, but the focus needs to be on showing the expert’s credibility and ability to hold a hold a jury’s (or arbitration panel’s) attention and “teach” them how the areas in his or her area of expertise work against the opposing party’s case.

Q. How would you prepare for an arbitration/mediation as opposed to trial?

Arbitrators are almost always lawyers and instead of limiting the issues they will hear (as a judge might limit the issues that will be presented to the jury), they will often allow all expert testimony with the knowledge that they have the experience to disregard or give less weight to anything they do not think helps them reach a decision.  Thus, the expert often has to prepare to testify on numerous areas that a judge might have thrown out in a pre-trial motion in a court case.  Also, in arbitration, there may be limits placed on discovery (e.g., number of depositions, etc.) that would not be common in a court case, so the expert may have to reach opinions with less evidence he or she might have in a court case.  In addition, things can come up for the first time during an arbitration hearing that would come up during discovery in a court case.  Other than allowing for these differences, there is little difference between preparing for arbitration or trial testimony.

Preparing for presenting during a mediation is entirely different.  Here the expert needs to prepare a solo presentation, much as if he or she were doing a presentation of the opinions that will eventually be in his or her expert report.  But it is often done before there is enough evidence revealed in the discovery process to develop opinions or to write a report explaining them.  Focus needs to be put on explaining the relevant areas of expertise that relate to the issues in the case and how they favor the expert’s client.

Q. What are some of the more effective techniques you have seen used by experts at arbitration and mediation?

Rather than techniques, which may not be that different between courtroom testimony and arbitration and/or mediation, I would put the emphasis on how the expert conducts himself or herself to establish credibility with the arbitrator(s) or the opposing attorneys/litigants.  Because of the less formal nature of these proceedings, in comparison with a trial, the expert often has at least some opportunity to interact with the arbitrator(s), opposing party and/or mediator other than the time he is testifying (or, in the case of mediation, presenting).

In addition to establishing credibility with the arbitrator(s) and opposing attorneys for the benefit of the expert’s client, the expert should also be aware of the fact that today’s arbitrator or opposing attorney could be tomorrow’s client once the arbitration or mediation is over.

Brooks Hilliard will be speaking at the SEAK National Expert Witness Conference to be held on May 3-4, 2014 in Orlando, FL.

Expert Witness Testimony at Arbitration, Mediation, and Trial: Similarities and Differences for the Expert Witness

Brooks Hilliard  CMC™, CCP

Mr. Hilliard will discuss how experts can increase the effectiveness of their testimony at arbitration, mediation, and trial. He will review the differences between court trials, arbitrations and mediation and how they affect your preparation and testimony as an experts. Specifically, he will cover the difference between judges and arbitrators, relaxation of the rules of evidence, the importance of “presentation skills” (within bounds) in mediation, and creating rapport with arbitrators. Mr. Hilliard will offer practical suggestions for experts to succeed at arbitration, mediation, and trial.

Brooks Hilliard CMC, CCP is President of Business Automation Associates in Phoenix. He has testified as an expert witness on information technology matters, including computer system and software defects and IT-related intellectual property matters, in both state and federal courts, as well as numerous arbitration hearings and mediation proceedings. He has been engaged in more than 100 matters in 30 states since 1983. In addition, Business Automation provides computer information systems consulting to businesses and governmental organizations.