The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR)

Alternate dispute resolution, ADR, refers to resolving disputes in ways other than going to court.

The role of professional engineers in ADR is to provide technical data, conclusions and opinions as to the cause of engineering failures, industrial, traffic and aviation accidents, and slips, trips and falls.  This type of information contributes to intelligent decisions as a basis for the resolution of disputes with technical issues.

This blog, one of a series, lists the tasks – itemized below, of a professional engineer’s role in ADR

In some areas, over 90% of lawsuits involving the built environment settle before going to trial, and this is often facilitated with evidence from forensic engineering investigations.

ADR can be carried out at any stage in civil litigation – even before an action is filed.  Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place.  At that point, each party is more fully aware of the other side’s case.  Each party has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.

There are three commonly used methods of ADR.  Other forms of alternate dispute resolution are used but the following are particularly relevant to civil litigation.

  • Negotiation
  • Mediation
  • Arbitration

All forms of ADR rely on a presentation of facts, and resolution based in part on a consideration of the facts.

A professional engineer’s services are generally the same regardless of the ADR method selected by the client.

  1. Review and examine all technical documentation, electronic data, physical evidence, tangible exhibits, demonstrative evidence, and transcripts of proceedings on the case
  2. Visit and briefly re-examine the site
  3. Review and confirm the forensic engineering investigations carried out by the different parties to the dispute, the data and technical evidence gathered, the analyses and reasoning, the findings, the technical facts, the conclusions, and the opinions formed on the cause of the engineering failure, poor structural performance, or personal injury/fatal accident
  4. Review estimated costs to repair the damaged structure
  5. Review the claims and the technical strengths and weaknesses of each party to the dispute, including counter claims and cross claims 
  6. Review the technical facts given in support of each party’s position and the technical evidence supporting the facts
  7. Confer with counsel about their clear understanding of the technical evidence from the forensic engineering investigation, the technical facts supported by the evidence, and the technical issues on which the claim, defence, and counter claims are based
  8. Prepare to testify as an expert witness if required
  9. Provide the hearing with technical data and information to facilitate an understanding of the technical issues
  10. Interpret and explain technical issues to a mediator or arbitrator
  11. Serve as a mediator or arbitrator if the dispute has technical issues
  12. Assist counsel in assessing technical elements in offers made by different parties to facilitate settlement

Negotiation

In negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.

If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement.  This way the parties can work out a solution that best meets the needs and interests of all parties.

In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.

Mediation

In mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges.  Mediation often leads to resolutions that are tailored to the needs of all parties.  The process is informal and completely confidential.  As a result parties may speak more openly than in court.

Arbitration

In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.  At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.

Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators.  Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.

Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, engineering.

The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws.  The arbitrator will explain how the decision was reached.

If the applicable law allows, parties can decide in advance whether the arbitrator’s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.

 

 

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