Your expert says that the origin or cause of the loss is one thing. The expert retained by the other party says it’s another.  The lawyers spend their time figuring out clever ways to challenge the assumptions, findings and conclusion of the adverse expert, with the trial being the usual culmination of that process.

Generally speaking, lawyers only rarely file expert reports or summarize the findings, opinions and conclusions at mediation. Even if they do, it is usually very difficult for the lawyers to negotiate in the shadow of differing reports or opinions. This makes the settlement process needlessly difficult, and more to the point, makes risk assessment and the predictability of trial outcome almost impossible.

If you accept that negotiation and settlement in advance of trial are in reality an exercise in risk assessment, efficiency, and insuring against adverse outcomes, then it is of utmost importance that the strength and weaknesses of the expert evidence, be understood and assessed by both lawyers and clients as soon as possible.   To ignore this is to invite disaster.- In R. v Singh^[1], the Court of Appeal set aside a trial judgment because the trial judge failed to expressly disabuse himself of what turned out to be inadmissible portions of an expert report.

The Court said this:

[30]      The criteria for the admission of expert evidence – 1) relevance; 2) necessity in assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a properly qualified expert – are well-established: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-23; R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600; R. v. D.D., 2000 SCC 43 (CanLII), [2000] 2 S.C.R. 275. It falls to the trial judge to determine whether these criteria are met in a given case.

[31]      It is important not to lose sight of the scope of a trial judge’s ‘gate-keeping’ function in relation to expert evidence. A ruling in favour of the admission of expert evidence does not discharge the trial judge’s obligation to protect against the misuse of such evidence.  In R. v. Abbey, 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330, at para. 62, Doherty J.A. of this court warned:

A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal. [Citations omitted.]

[32]      More recently, in affirming the importance of the Abbey caution and the oversight role of a trial judge concerning expert evidence, Moldaver J. of the Supreme Court, writing for the majority, stressed in Sekhon, at paras. 46 and 47:

Given the concerns about the impact expert evidence can have on a trial – including the possibility that experts may usurp the role of the trier of fact – trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges – including those in judge-alone trials – have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert’s testimony, the testimony remains within the proper boundaries of expert evidence. …

The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.  [Citations omitted; emphasis added.]

[33]      Justice Moldaver continued, at para. 48, by noting that trial judges “are accustomed to disabusing their minds of inadmissible evidence.”  Nonetheless, he emphasized:

It goes without saying that where the expert evidence strays beyond its proper scope, it is imperative that the trial judge not assign any weight to the inadmissible parts.

We as barristers must be always reminded that an expert is not an advocate for the party, and that the expert’s duty is to the court and not the party retaining the expert. Unfortunately, the opportunities to put the expert report to the test prior to trial are few.

Is this efficient?  Is there a better way?

Perhaps, one way to do this is to “hot tub” the experts at mediation. Is this unprecedented? Lawyers sometimes forget that some elements of the expert hot tub concept already exist in the Rules of Civil Procedure. For example, Rule 20.05 reads:

20.05  (1)  Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously. O. Reg. 438/08, s. 14.

Directions and Terms

(2)  If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order…

(k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and,

(i) there is a reasonable prospect for agreement on some or all of the issues, or

(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;

In like vein, the Federal Court Rules provide:

Expert conference

52.6 (1) The Court may order expert witnesses to confer with one another in advance of the hearing of the proceeding in order to narrow the issues and identify the points on which their views differ.

Presence of parties and counsel

(2) Subsection (1) does not preclude the parties and their counsel from attending an expert conference but the conference may take place in their absence if the parties agree.

Presence of judge or prothonotary

(3) The Court may order that an expert conference take place in the presence of a judge or prothonotary.

Joint statement

(4) A joint statement prepared by the expert witnesses following an expert conference is admissible at the hearing of the proceeding. Discussions in an expert conference and documents prepared for the purposes of a conference are confidential and shall not be disclosed to the judge or prothonotary presiding at the hearing of the proceeding unless the parties consent.

SOR/2010-176, s. 2.

How might this work at mediation? What follows are some ideas that you might find helpful.

Most importantly, it is imperative that usual adversarial mindset of client, lawyer, and (hopefully not) expert must be displaced at the mediation with a mindset focused on without prejudice joint problem solving. The central idea of the hot tub is to have the experts work cooperatively in a process that determines the points of agreement and points of difference and the reason for the differences.

Here are some suggestions on how the hot tub might be run:

1. Prior to the hot tub session, each expert should prepare a report in writing setting out in summary form, the assumptions, methodology, findings, opinions and conclusions. The reports should be exchanged well in advance of the hot tub session so that each expert can consider and respond to the report of the other.
2. The reports should be submitted to the mediator with the mediation briefs. The briefs should place the expert reports in the factual or legal context of the dispute.
3. The parties, the lawyers and the experts should attend the hot tub session. The session is chaired by the mediator. Each expert in turn reviews or explains his or her report, or findings opinions and conclusions and answers the questions posed by the mediator. There is no questioning of the experts by the lawyers or the clients.
4. After the question and answer session, the mediator meets with each party/lawyer/expert in caucus with a view to determining risk, and efficiency with a view to arriving at a settlement figure or approach.

Here is a list of possible outcomes of a hot tub session, short of a resolution of the lawsuit^[2]:

1. The issues that divide the experts are submitted to an arbitrator or a panel of arbitrators who may or may not be experts in the field. The balance of the dispute then goes on to trial;
2. The issues that divide the experts are submitted to a third neutral expert retained jointly by the parties and selected by the experts, who may produce either a binding or non binding opinion.
3. Hold a second mediation where a third and neutral expert attends to assist in the resolution of technical issues.
4. As a result of the hot tub, the experts are directed to revisit and revise their opinions, or conduct further tests or investigations with a view to the convening of a second hot tub when the results are known.

The advantages of the hot tub are obvious: clarification and simplification of the scientific issues; the creation of a non adversarial environment where the clients and lawyers get to appreciate the risks; the ability to correct assumptions, methodologies, and conclusions without prejudice; the ability to conduct further investigations; the potential to arrive at early resolution of conflicting views short of a trial.

The disadvantages are: expenditure of more time and money; experts, jealously mindful of their professional reputations, may see the hot tub as an opportunity to take on adversarial and partisan positions; “outsourcing” conflicting expert opinions may be perceived as lack of confidence in the opinions already paid for and committed to.

On balance, the potential advantages outweigh the negative. The key is the courage to try something new.

If you have any questions about the article, please do not hesitate to contact Gary Caplan at Mason Caplan Roti LLP.

[1] 2014 ONCA 791.
[2] See for example, John Wade, “Duelling Experts In Mediation and Negotiation: How to Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity”, (2004) 21:4 Conflict Resolution Quarterly, 419.

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