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IndyBar: Involving Your Expert in the Mediation Process: A Trap for the Unwary?

February 10, 2016

This article was originally posted on the Litigation Section webpage. To get news like this delivered to your inbox, customize your news subscriptions at indybar.org/account!

Cases can often involve technical issues. The author has heard of mediations where a party will bring an expert to the mediation to address and respond to the technical issues that are present in the case. The decision by the Magistrate Judge and which was affirmed by the District Judge in Irwin Seating Company v. International Business Machines et. al. in the United States District Court for the Western District of Michigan Case No: 1:04-CV-568 demonstrates that having your expert involved in a mediation is not without some risk.

A complete analysis of these decisions is beyond this publication’s space limitations, but in a nutshell here is what happened:

The plaintiff in this case allowed its experts to review the defendants’ mediation statements and the plaintiff’s experts’ reports expressly noted that they had reviewed the defendants’ mediation statements. The Magistrate Judge struck plaintiffs’ experts because they had been provided the confidential mediation statements. The District Judge affirmed the Magistrate’s decision. The District Judge stated in part:

“The Magistrate Judge concluded that no adequate means existed for undoing the experts’ improper knowledge. As the Magistrate Judge noted, the facts upon which an expert relies are not required to be admissible. However, the factual basis for the expert’s opinion is subject to inquiry and cross examination. FED. R. EVID. 703. Because the information is confidential, Defendants will be unable to fully challenge the experts’ assertions that their opinions were not influenced by confidential settlement knowledge.”

The facts of Irwin Seating are a bit extreme in that the Plaintiff unilaterally gave the mediation statements to its experts and the experts expressly reference the mediation statements in their reports. Nonetheless, the basic theory underlying the opinions is the fact that experts were given the mediation statements. Neither the Magistrate Judge nor the District Judge was swayed by the Plaintiff’s argument that the experts both stated that they used the mediation statements only for background and that the statements did not influence the experts’ opinion. At a minimum, the reasoning of these decisions raises the issue that giving your expert a mediation statement or allowing an expert to attend a mediation (even if the other party doesn’t object) is not without some risk.•

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