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John H. Wade
Editors’ Note: Your case is complicated; it involves specialized knowledge, and without some help, the judge probably won’t understand it and the jury certainly won’t. Furthermore, your chances of negotiating a settlement depend on getting some degree of shared understanding with the other side of what the facts are. So you’ve hired your expert, and the other side has hired its expert—and now the experts themselves are locked in combat. Could you avoid this next time? In the meantime, what do you do now? Wade analyzes your options at every stage, and shows how even when the experts have delivered black-versus-white reports of the facts, you can still salvage the situation. This chapter should be read in conjunction with Adler on Negotiating Facts.
A common cause of conflict is missing information or data perceived to be inaccurate. One response to data conflict involves the employment of two or more alleged experts to support the opinions of the parties to the conflict. One definition of an “expert” is “a person who has special skill or knowledge in some particular field” (The Macquarie Dictionary 1982: 628). These alleged experts may be medical doctors, engineers, lawyers, valuers, builders, accountants or psychologists—to name a few. Experts who are asked to give opinions frequently give diverse opinions on causes, values, and predicted futures.
One positive side of employing experts is that they may be able to reduce data conflicts, such as:
■ What caused the concrete to crack?
■ What degree of pain will the injury cause in the future?
■ How much is the corner store worth?
■ What is a judge likely to decide in two years’ time?
■ How much will the repairs cost?
■ How much profit will the business lose over the next ten years due to X?
Many data conflicts are settled due to the dispassionate opinions of one or more alleged experts about history, causation or the future.
But disputants are often astounded to find that two experts can be “so far apart” (Crystal Auburn Pty. Ltd. v. I. L. Wollerman Pty. Ltd. 2004). There is also a darker side to the practice of seeking expert opinions in order to settle conflict (Egan 1994). This problematic side often emerges as the conflict escalates. Instead of being part of the solution, the alleged experts become part of the problem for the clients, and for the mediator or facilitators. The writer has labeled this common phenomenon as “dueling ‘experts’ syndrome” (Wade 2000). Mediators and professional negotiators become voyeuristic observers of the darker sides of expert assistance.
Dueling Experts’ Syndrome
This syndrome involves some or all of the following patterns of behavior: each disputant employs a different expert (ours is the best in the field); each disputant hires an expert who has a reputation for favoring that disputant’s preferred outcome (reputational partiality e.g., a plaintiff’s doctor); tells different stories to their own expert (garbage in, garbage out); expressly or impliedly hints at the advice she wants from the expert (remember who is paying you). The experts initially do not consult with each other (delusionary isolation); the expert, in order to curry favor and ensure future employment from a repeat player, tells the client in writing what he wants to hear (you get what you pay for); the written over-confident report does not set out either a clear list of factual presumptions made, or the details of the terms of the expert’s employment instructions (garbage in, garbage out again), or a clear list of alternative interpretations, or a range from best to worst of alternative “legitimate” views in the field (delusionary certainty); the report is long, rambling and sometimes incomprehensible to the average citizen (mysterious complexity); and each expert is instructed not to show draft reports to the other (no early doubts or compromises).
Once the over-confident (versions of the) expert reports are published, each expert defends his/her version with increasing verbal intensity and insult in order to preserve reputation, ego (now it is personal), future employment and maybe even to settle old scores. Then the expert does what is expected as a snarling Doberman (this is our opening offer). The disputants then invest large amounts of time and money to resolve a....
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