Nature of Expert Determination
Expert Determination is similar to arbitration
- one or more technical experts, with expertise in the area of the dispute,
are privately appointed by the parties to make a legally binding "determination"
to resolve their dispute.
The expert’s authority is drawn purely from the agreement appointing
them – allowing the parties to be very specific about what they
want the expert to do … or not do!
Expert determinations are highly focused activities that are used mainly
where there is a single, or limited range of issues in dispute (eg: to
determine a rent, set a $ value for goodwill or calculate compensation).
Expert determinations are often conducted purely on documentary submissions.
This makes them very short, sharp and cost effective compared to litigation
and to most other forms of dispute resolution.
The Expert Determination Process
Our standard approach (subject to agreement between the parties) is:
- Identify and confirm legal/contractual basis for determination.
- Establish appropriate process, information requirements and timetable.
- Obtain submissions and gather relevant information.
- Conduct additional enquiries / research as required.
- Consider all evidence and produce Provisional Determination.
- Circulate Provisional Determination for comment.
- Invite, receive and consider responses from parties to Provisional
Determination. To keep this process tightly controlled strict
form, content and time constraints usually apply.
- Consider parties’ responses and amend Provisional Determination
- if necessary.
- Finalise and issue the determination, including brief reasons for
the decision.
Benefits of Expert Determination
Because the person making the determination is an expert in the field
of the dispute they can usually get to the heart of a matter efficiently
and decisively.
This efficiency translates into a tight process that minimises time
spent, cost, stress and general disruption. These features make
expert determinations especially useful for valuation disputes, eg: limited
scope commercial “disagreements” and matrimonial property
valuations - where the substance of the dispute should rightly receive
more emphasis than the peripheral legal issues.
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