Experts in Mediation - a catalyst to success?
3rd May 2016 by Fiona Hotston Moore
As an expert witness in accounting, tax and financial matters we are often engaged somewhat late in the dispute and often only when fighting it out in court has become inevitable. This is unfortunate as in my experience the expert can be a powerful tool in mediation or achieving a negotiated resolution.
Mediation is one of the methods known as Alternative Dispute Resolution whereby the objective is to reach a negotiated settlement facilitated by a neutral third party, the mediator.
Mediation can be used in matrimonial and family disputes as well as commercial and contractual disputes.
Mediation is usually a voluntary process but is generally an advisable step before proceeding with the far more expensive and stressful court litigation. The mediation meeting is confidential, and anything disclosed or discussed in mediation cannot be used in litigation should the mediation fail.
The mediator will not take sides nor make judgements. They will encourage both sides to explore the strengths of their cases and to seek a resolution that each party can live with.
Whilst the expert is engaged by one party and therefore is seen as a paid advocate, experience shows that the expert can assist in a negotiated settlement.
The accounting expert can assist the parties, legal counsel and the mediator in understanding the facts and issues and presenting these succinctly. For example they can marshal financial data and present it in a simple format to expedite discussions. They can also advise on the tax consequences of the proposed resolution.
The expert witness should be seen as an objective professional or honest broker.
The expert will need to consider how they manage the ethical issues that can arise from participation in the mediation. These are not straightforward but can be managed with transparent communication.
The mediator may on complex cases request the assistance of an expert as their advisor.
In conclusion an expert can be a catalyst in dispute resolution and make a valuable contribution to allowing both parties to better understand their position and find an acceptable and workable financial resolution.
For more information on the above issue please contact Fiona Hotston Moore.
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