Expert Determination
Unisearch Expert Opinion Services has recently introduced a service to provide experts for Expert Determination of matters and disputes.
Expert Determination is a procedure for the resolution of disputes where the parties appoint an independent and neutral expert to assess the matter and make a decision based on the available evidence.
Expert determination is a less formal procedure than litigation or arbitration but it does have rules. The parties agree beforehand on the process and are bound by the decisions of the expert.
Increasingly Expert Determination is prescribed as a necessary process before considering litigation. For example, the New South Wales Department of Commerce sets out five levels of escalation for resolving disputes arising in construction contracts; Expert Determination is specified as the fourth level before the final level of litigation.
The benefits of Expert Determination are that it can be quicker and less costly than other methods and it allows trade secrets and other sensitive information to be kept out of the public domain. Generally, Expert Determination is suitable for resolving disputes that are of a technical nature such as construction issues or valuations.
Another benefit is that it is perceived as less adversarial and parties may continue their business relationship without the shadow of “pending litigation” affecting the ongoing activities.
The role of the expert
Essentially the role of the Expert is similar to that in relation to Expert Opinion in that competence and objectivity are required to assess the evidence and make a determination.
A major difference is that in briefing the expert, all parties must agree to be bound by a set of rules in relation to the Process. Unless otherwise agreed, the parties are jointly liable for the costs of the Process in equal share.
Expert Determination rules have been published by Law Society of New South Wales (PDF) and the Institute of Arbitrators and Mediators.
To request an expert please submit a Briefing form.