The National Mediation Conference 2019 continues to provide rich material for learning and reflection some weeks after the it concluded. This blogpost from Fleur Kingham, President, Land Court of Queensland provides a great taste of the challenging and thought-provoking session she delivered.
What has ADR got to do with expert evidence?
In the Land Court of Queensland, ADR objectives, skills and techniques are at the heart of its procedure for managing the pre-trial preparation of expert evidence.
With the aspiration of enhancing the integrity and utility of expert evidence, the President of the Land Court adopted Practice Direction 3 of 2018, supplemented by the Guidelines for Expert Evidence.
The procedure for Court Managed Expert Evidence, or CMEE for short, brings together two very familiar processes in civil litigation – active case management and meetings and joint reports by the experts. The innovation lies in how those processes are connected, located within a without prejudice framework and supervised by a convenor, who is either a member or the Judicial Registrar of the Court.
The impetus for this procedure is twofold – the importance of expert evidence to its cases and enduring concerns about the quality of expert evidence led before the Court.
Expert evidence is central to the resolution of most matters that come before the Land Court. It is a specialist court with jurisdiction to hear disputes about the terms of access to and compensation for use of land for mining and other resource developments, compensation for the compulsory acquisition of land, cultural heritage disputes and appeals about land valuations. Expert evidence is involved in nearly all cases and, in some, the only issues in dispute involve expert evidence.
The Court has the same concerns that have motivated courts and tribunals to become increasingly interventionist in the management of expert evidence. Those concerns include bias (conscious or unconscious), the complexity of the information, the incomprehensibility of technical reports, and the risk of competing expert reports passing like ships in the night.
The CMEE Convenor’s role is procedural, facilitative, neutral, and expert. The CMEE Convenor cannot decide any substantive matter and cannot make directions without the parties’ consent. They facilitate communications about pre-trial preparation of expert evidence and seek to build consensus between the parties and their lawyers about the necessary steps. It is expert in the sense that the CMEE Convenor is an expert in the Land Court’s procedure and has content expertise in the Court’s jurisdiction. It is not evaluative, except to the extent that suggestions about process might involve the Convenor applying their expertise to help the parties move through process stalemates.
The objectives of the CMEE process are familiar to an ADR practitioner:
• To resolve, reduce and manage disagreements to a minimum; and
• To prepare for either mediation or more focussed preparation for the trial with reduced issues.
The Convenor uses the ADR skills of convening, facilitating, and managing disputes. The CMEE Convenor assists the experts during their meeting process to understand their role and the Court’s expectations. They facilitate the experts’ discussions and preparation of their joint expert report. In Queensland, once the experts start their meeting, they must proceed without further instruction from the lawyer/party who engaged them. This can create a dilemma if the experts need further instruction or information or need more time to complete their work. The CMEE Convenor can facilitate communications with the lawyers as a group. This ensures the confidentiality of the expert evidence process is not a barrier to meaningful communication and further instruction (without inappropriate influence) where required.
The CMEE Convenor also facilitates communications between the experts and the lawyers/parties and the Court. The CMEE Convenor will identify when something needs to be taken from the expert meeting to the lawyers for direction. The CMEE Convenor will also ensure that any matter that needs to be resolved on the record can be brought back to the member managing the case.
ADR techniques are central to the work of the CMEE Convenor: to clarify, find common ground and to explore solutions. The CMEE Convenor does not mediate a resolution between the experts. They use constructive controversy to encourage deliberative discussions aimed at creative problem solving. The CMEE Convenor ensures the experts address the same issue, with reference to the same material and that, if they differ, it is clear why they differ and to what extent. Many differences between experts, at the end of the day, prove to be immaterial to their ultimate opinion. The CMEE Convenor encourages the experts to identify what differences between them are material to the outcome of their opinion.
The CMEE process is relatively new. An international team of ADR academics will evaluate it in due course. To date, CMEE appears to be well received by the parties/lawyers and their experts. The President considers it has resulted in more focussed preparation of better quality expert evidence.