It is common for impasse to develop because of disagreements involving party retained experts over liability or damages.
1. Assume all parties have independent experts. Before negotiations begin, the mediator schedules a meeting with the experts. The parties and their lawyers can attend but not ask questions. The purpose of the meeting is for the experts to narrow their differences. They are free to “argue” with each other. If the resolution of the impasse requires repairs to existing construction, the experts often will introduce solutions that had not previously been considered and which are acceptable to the parties. The experts are made parties to confidentiality agreements. The experts are free to change their opinions in the event the case goes to trial or arbitration. In other words, when testifying in court, what happened at the mediation is not admissible.
This process is collaborative, not adversarial, so the discussion at the meetings is open but confidential. However, the experts are reviewing the evidence that would not be confidential at trial. The mediator does not share with the experts what the mediator may have confidentially learned from the parties.
2. Assume not all parties have retained experts. An actual case involved a contractor and a municipal owner disputed the cost of remediation of leaking windows installed in a historic city office building. Only the owner was using an independent expert. The mediator suggested that the owner and the contractor each submit three names of independent experts and the mediator would choose one expert. The mediator chose an expert who was a contractor with an architectural license and had a lot of experience with window issues. He signed a confidentiality agreement with the parties. This expert worked on developing a remedial plan that was acceptable to the expert for the owner and to the contractor. The expert also supervised some testing over several months to make sure the remedial plan would work.
Though not contractually a co-mediator, the expert acted more like a co-mediator and helped also resolve monetary issues that caused the city to hold back final payments to the contractor. The mediator’s principal job was to develop this process which focused on the remediation plan Until the mediator became involved the parties were unsuccessfully trying to settle based on monetary offers and demands and ignoring the remediation plan. The expert playing a both facilitative and evaluative role was able to settle the case with little involvement of the mediator.