Expert Determination

The process

• The decision is binding unless it is agreed by the parties at the outset that the determination will not be.
• Expert determination is particularly suited to disputes of valuation or a purely technical nature across a range of sectors.
• This process can be used as a shortcut to a binding decision, because it is simpler and cheaper than a court case or arbitration. There is no requirement to prepare pleadings, conduct detailed investigation of documents, cross-examine witnesses or conduct trial-type hearings.
• Like an arbitrator, an expert can make investigations independently of the parties, but, unlike an arbitrator, an expert does not need to refer back to the parties before making the decision. This results in savings of cost and time.

Expert determination is not like court proceedings, and has very little in common with them, or with expert evidence. In an expert determination, the expert constitutes the tribunal and makes the decision, and they are not in any sense a witness.

Mediation and Expert Determination

Expert determination is often used in conjunction with other dispute resolution processes, and it can be used as an adjunct to mediation. This can arise where there is a need for an independent authority of the mediator(s) to give a binding decision on an important issue. The use of expert determination provides the parties with the means of resolving a part of a dispute about which they would prefer not to negotiate. Obtaining an expert's ruling can break an impasse and allow the mediation to proceed without that blockage and it allows the mediator to remain completely impartial.