Is there value in using a facilitator for expert conferences?

  • 8 May 2017

Mr Richard Weinstein SC recently delivered a presentation commenting on the holding of expert joint conferences and in particular, the benefit of the use of a facilitator at such conferences.

Key Points
  • The use of an appropriate facilitator increases the likelihood of useful joint report being issued at the conclusion of an experts’ conference.
  • Careful consideration should be given to an appropriate facilitator to maximise this possibility.

A joint conference is where experts retained by parties to litigation meet in order to narrow the issues in dispute in the litigation and prepare a joint report. Thereafter these experts give their evidence at the hearing of the matter, concurrently. Joint conferences are typically ordered to take place by the Court when a matter has failed to resolve at mediation and is to proceed to a hearing. The Court Rules (UCPR 31.24 to 31.26) and Practice Notes issued by the Supreme (Practice Note SC Gen 11) and District Courts of NSW deal with the holding of joint expert conferences.

Mr Weinstein SC noted that there are four important points with respect to the preparation of joint reports in a joint conference:-

  1. The experts have an overriding duty to the court, rather than to the parties, to give honest and frank opinions;
  2. Experts ought to specify the matters agreed;
  3. Experts must attempt to narrow the issues in the proceedings; and
  4. Legal representatives must not provide guidance or advice to the participating experts during the time the report is prepared, and in particular, until after all participants have signed the final report

It is becomingly increasingly common to ask a facilitator to manage these joint conferences in order to maximise the usefulness of the joint report, which is issued at the end of the conference. The facilitator is independent of the parties and conducts the facilitation in private in the absence of the parties legal representatives. The facilitator expresses no views on the substance of the matters being commented on by the experts but assists the experts to ensure that the questions are answered responsively. At the conclusion of the conference the facilitator arranges for the joint report to be signed by all experts and sent to the legal representatives of the parties.

Mr Weinstein SC commented that in his experience the joint report prepared for the purpose of concurrent evidence has been a positive development in the law, which has had the effect of reducing the length of hearings. In terms of selecting an appropriate facilitator, Mr Weinstein SC recommends that this person be a senior counsel with experience in the area of law in issue and someone who has sufficient gravitas to manage the participants of the joint conference.

Click here to view Richard Weinstein’s lecture notes

Post by Karen Kumar

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