Does an Arbitrator With Subject Matter Expertise Give you a Better Decision?
By Gerald R. (Jerry) Genge, P.Eng., C.Eng., BDS, BSSO, Q.Med., C.Arb.
Would you prefer the contentious classic civil court process, or would you rather get it resolved by someone impatient about getting it right? This brief article describes the alternatives and one proven way to move disputes from a looming mountain of paper and process to the rear-view mirror.
On one hand, the civil justice system is underpinned by fairness and equal opportunity to argue or defend a claim. It has allowed evidence to be weighed and interpreted, and to form the basis for the opinion and decision by only the judge. The judge may have experience in many aspects of law; but, they are likely not trained in matters involving technical issues. Sometimes common sense is enough; but, not always. Enter the “expert”. As an exception to the rules of evidence, the expert may be granted the right to present an opinion on the technical matters. If well-presented, the opinion evidence could supplement a judge’s personal background and experience. A good expert can do this. A hired gun cannot and since the hired gun is the usual worry of all other parties, they too must engage experts to respond to the evidence and present their expert opinion. On the surface, that all supports fairness and equality of opportunity. It also slows the process and adds cost as report upon report upon report is written and produced. The reports may answer only some of the questions about the matter and; thus, be only part of the picture. They may be long and tedious to read. They may be advocating for a position. They may not be helpful at all.
On the other hand, an adjudicator or arbitrator with technical subject matter expertise may be able to hear technical evidence and substantially abbreviate the time involved. If they are really on their game, they may require that the experts for all parties meet with a facilitator to pare down the points of disagreement and, without influence by the advocates or the principals in the claim, establish a fair valuation of damages or what needs to be done to resolve the issues. As another option, the technically astute arbitrator may choose to get all the experts together as a panel and question them on their reports, direct certain experts to do certain activities, or give counsel some direction on the limits of the qualifications of the experts. In certain instances, with the parties present in the background; the evidence can take less than half the time to submit; and the case may settle much more readily with the true issues identified.
In the cases where the conventional process is employed, everyone spends a lot of time and money working their way to the date of a trial. Sometimes the important witnesses have disappeared. Sometimes the evidence and memories are stale. But, the due process is upheld. In the cases where someone with subject matter expertise takes control, the time taken, money spent, anxiety experienced, and public exposure can be curtailed while possibly arriving at a better answer to the questions of liability and damages.