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Knowing Key Differences and Similarities When Testifying in Mediations, Arbitrations or in Court

Article by Judd Robbins

Although the setting and participants will vary somewhat, the overall scope of your preparations for testimony during a mediation, an arbitration, or in court should be similar. In each of these settings, you will have done equivalent research and investigations, and you will have reached your conclusions. If you have prepared a formal expert report, you will be subjected to intense scrutiny and questioning about your work and your opinions.Each of these judicial proceedings will have attorneys on both sides and occasionally experts on both sides. A court of law may appear more formal, and more intimidating, but do not be misled into thinking that mediations and arbitrations are any less important or intense. You must still come to those settings equally well prepared with your opinions, and equally well prepared to handle questioning about your methodologies and your work.In mediation, one person will have been selected and agreed on by both sides to serve as a mediator. Mediators are often attorneys or retired attorneys who attempt to analyze the facts of the case, explain the findings of the experts and seek to find reasonable and acceptable common ground for an agreement between the parties. Mediation is the most informal procedure and often takes place at the mediator’s office. No court reporter is there to record everybody’s words, and the experts are not usually sworn in under oath. However, each party will still present its case, both professionals will have their opportunities to testify, and both attorneys will have their opportunity to cross-examine the professionals. In addition, the mediator can choose to pose a variety of clarifying questions to the experts. The mediator’s goal is to help resolve the issue by bringing his or her intelligence to evaluate the dispute and to help resolve it.Arbitration is less formal and less costly than a trial, although more costly than mediation. The American Arbitration Association sets the fee schedules for its members. frequently, ‘binding’ arbitration is used, in which both parties agree in advance that the decision reached by the arbitrators regarding an result will be accepted. The same questioning and cross examination by attorneys, and extra questions by the arbitrator(s), goes on in this judicial forum. While it has the lesser formality of mediation, binding arbitration incorporates even more finality than a typical courtroom decision. Since the results of arbitration are generally final, it is almost always a less costly approach than going to court and trial. Of course, choosing binding arbitration foregoes the opportunity to present your case to a jury of your peers.One extra appointment that you may obtain is that of Court Appointed Expert, sometimes called a special “Master”. The appointment is defined by Rule 706 in the Federal regulations of Evidence, and spells out the responsibilities, burdens, and compensation. To save money, both sides in the case will sometimes agree on this individual expert witness to act impartially to review the evidence, to perform the same analyses and investigations and to come to a set of final opinions. The position of court-appointed expert represents a truly balanced opportunity for an expert to analyze evidence, run tests, perform analyses, conclude opinions, and affect the judicial process. You will report the results of your work in this setting to a judge who will finalize his ruling based on your objective analysis. This can be more fun than being selected by one side or the other because neither side expects you to tilt your work toward them. Both sides have agreed to pay half of your costs, and you have no other expert trying to counter what you have to say. Since they are trying to save money, you usually do not even have any depositions or cross examinations by attorneys on what you have done. Nevertheless, according to Rule 706, you are still subject to possible depositions that would contain questions from both sides, as well as cross examinations by the court and either party to the suit.