Preparing Experts for Mediation or Arbitration

In both mediation and arbitration, expert witnesses can play a key role in helping clarify liability, damages, causation, or industry-specific issues. However, unlike trial, where an expert's testimony is structured around formal rules of evidence and adversarial cross-examination, the neutral setting of ADR (Alternative Dispute Resolution) demands a different level of preparation.

Here are a few best practices for attorneys and neutrals alike when preparing experts for ADR:

1. Clarify the Role Early - Experts in ADR are often not there to "win the case," but to provide clarity and support reasoned decision-making. Attorneys should discuss tone and audience expectations with the expert well before the session.

2. Simplify and Summarize - Whether in mediation or arbitration, decision-makers value clarity. Experts should be prepared to summarize their conclusions concisely and support them with visuals or one-page summaries when appropriate.

3. Practice the Presentation - Even in arbitration, where the expert may testify formally, a conversational, professional tone can be more persuasive than an overly rigid, defensive stance. Rehearsing Q&A with the expert helps reduce jargon and improve credibility.

4. Be Prepared for Informal Settings - In mediation, experts may be present but not speaking unless asked. Prepare them for that possibility. Their reports, summaries, or availability to clarify questions behind the scenes can be just as influential.

5. Coordinate with the Neutral - Especially in arbitration, neutrals appreciate efficiency. Alerting the neutral to complex expert material in advance, or offering exhibits digitally, can help the process flow.

Experts can enhance the resolution process—when used strategically. Proper preparation not only boosts their effectiveness, but also helps the entire ADR process run more smoothly. A thoughtful expert strategy can help achieve both clarity and resolution.