Dispute outcomes
The best use of evidence
While the logic for aiming to settle at
mediation is compelling, there will often
be such a divergence of views that parties
will not be able to find common ground,
at least at first. Mediation is not about
finding a perfect answer, but merely one
which is better than the alternative – and
the alternative is usually litigation. So not
reaching a settlement should not necessarily
be seen as a ‘failure’, but an acceptance that
expectations may be too far apart. In that
case, the expert evidence already prepared
should usually be suitable for use at trial,
or easily adapted so that it can be.
Andrew Moffat
Commercial mediator,
Constructive Accord
Mediation allows flexibility that doesn’t exist
in most other stages of the dispute resolution
process, so this flexibility shouldn’t be wasted.
Some other considerations to keep in mind
to improve mediation outcomes include:
John-Henry Eversgerd
Forensic partner, McGrathNicol, who
prepares commercial forensic evidence
for court, mediation and arbitration
• Thoughtful decisions on the timing of
Commercial mediation has evolved
rapidly, from being an interesting
“alternative” to traditional courtbased dispute resolution, to an
integral and unavoidable stage of
almost all disputes – mandated by
legislation, ordered by court,
or contractually required.
But not all participants have fully adjusted to
this, and many still conduct themselves as they
would in formal litigation, depriving themselves
of the opportunities that mediation creates.
Litigation and mediation require different
approaches, as the decision-making process
in each is very different. In court, the task
is simply to convince the judge. Mediation
has additional complexity; a party needs
their expert evidence to fulfil potentially four
distinct roles:
1. Allow themselves to make an informed
assessment of the likely outcome of trial
(quantum and likelihood);
2. Create doubt in the other side so
that they are motivated to agree to
a favourable settlement;
3. Provide clarity on the underlying situation so
they know their own financial parameters;
4. Articulate the commercial justification for
the other side to agree to a ‘fair’ settlement.
40
PROCTOR | July 2015
mediation can improve the chances of a
good outcome – rather than just waiting
for directions from the court;
• Disputes may formally arise between
two organisations, but in fact the key
decision makers will be individuals with
their own thoughts, perspectives and KPIs,
so time spent understanding these can
yield valuable insights;
• Even financial disputes are rarely just
about money, so understanding the nonmonetary drives to the dispute will avoid
wasting money;
• Newton’s Third Law always applies – one
side acting aggressively will always provoke
an aggressive response, so be moderate in
tone unless aggression is tactically helpful.
“ Mediation is no longer
just a stage in the
litigation process, but
often the key dispute
resolution mechanism.”
It is no surprise there is increasing
reluctance to take matters to
court. Clearly, mediation can save
significant time and money in
many situations.
But due to the ‘human factor’ the best
strategies to achieve a good outcome in
mediation can be very different to the best
strategies to win a court case.
We certainly see a real difference between
mediation and litigation in the use of expert
evidence, including forensic accounting work.
When it comes to the maths and calculating
the financial component of a settlement, the
most logical and accurate quantitative analysis
and the ‘right’ answer – the information needed
for trial – isn’t necessarily what the parties need
to make the best decisions in mediation.
The parties present at mediation are likely to
include business people who are very close
to the matter, and emotionally invested in
the outcome. So, it is necessary to analyse
what the financial outcome would likely be
if the matter ultimately ends up in court, but
those calculations should be presented quite
differently when used for mediation, keeping
the audience and their perspectives in mind.
In essence, the key function of expert evidence is
guiding the parties to best understand their own
risks, as well as reminding the other side of the
risk they might face if resolution is not achieved.
Alternative dispute resolution
How can evidence be used to achieve a positive outcome through mediation or litigation?
Andrew Moffat and John-Henry Eversgerd share their thoughts.
I recommend in mediation not necessarily
providing all of your claim analysis up front.
If the quantum is significantly different from
what the other party expects or wants it has
the risk of putting them on the defensive
early. Strategically, consider beforehand
what would be most effective convincing
you if you were in their shoes. One strategy
is to focus initially on the independence and
expertise of the expert you have engaged
to perform the analysis.
The evidence will be more powerful if it is
presented using the following rules:
Before jumping to the numbers, explain
what questions the specialist was asked to
objectively answer. This will paint a picture
of what the outcome might be from a court
judgment. In other words, demonstrate
what the cost may be if they don’t negotiate
in earnest. Again, the use of evidence in
mediation can be more powerful if one
doesn’t jump to the technicalities right away
unless the conversation naturally goes there.
Mediation is no longer just a stage in the
litigation process, but often the key dispute
resolution mechanism – and this is increasingly
becoming understood by litigants and their
advisers. So we expect to see growing
sophistication from experts and those who
retain them, in ensuring that the way they
use expert witness evidence is optimised for
mediation. Those who don’t understand and
appreciate the differences will fail to make
1. Present the evidence in a summarised,
succinct manner;
2. Utilise graphical illustrations of the key
findings and a range of possible outcomes;
3. If the evidence is technical in nature,
use a consulting expert to assist and
hold a dress rehearsal in advance of
the mediation with enough time to
adjust the presentation.
the most effective use of the expertise at
their disposal, and will be less likely to achieve
a good outcome early.
Finally, a few more recommendations
when it comes to using expert witness
evidence in mediation:
1. Do a run through of your opening statement
with your experts ahead of the mediation
and hold back on content that will fall on
deaf ears, no matter how accurate and
convincing it would be in court;
2. Have the detail of your evidence handy, in an
easily digestible format, in case it is needed;
3. Understand whether the other side’s
evidence is from an independent expert who
has a duty to the court or from a consulting
expert who can instead act as an advocate.
This article appears courtesy of the Queensland Law
Society Alternative Dispute Resolution Committee. It is
an edited version of an article first published in March
2015 in The Australian Corporate Lawyer.
Government
Lawyers
Conference 2015
Friday 21 August 2015
Law Society House, Brisbane
6.5
Earlybird closes 24 July
qls.com.au/govlawyers2015
PROCTOR | July 2015
41