As we all know, the Courts are increasingly ordering experts to confer and produce a joint report that identifies their areas of agreement and disagreement, with a view to narrowing the issues in dispute.
Done well, these reports can assist in the just, quick and effective resolution of the matter; can reduce costs; or shorten the length of the hearing. Done poorly, they can be a complete waste of time and money.
Left to their own devices, the experts’ joint report can be little more than a regurgitation of the reports already served in the proceedings. The report can be wordy or overly brief, dominated by one expert, off point, repetitious or it may simply fail to address the questions posed. This can be an expensive exercise that adds little to no value to the future conduct of the matter.
Over the last few years, it has become more common to retain a facilitator to assist the experts during the conclave. A facilitator can help to overcome many of the shortcomings of the conclave process.
The role of the facilitator
A facilitator is responsible for guiding the discussion between the experts and for ensuring that the joint report addresses the questions posed by the parties. A facilitator is unbiased and neutral and can keep the discussion focused, encourage open dialogue and participation, and ensure that the objectives of the conclave are met.
The value added
There are a number of ways in which a facilitator can add significant value to a conclave:
- Managing dynamics: Facilitators can bring a wealth of expertise and experience in managing group dynamics. We all know that sometimes it can be tricky to deal with multiple experts – they may have strong opinions about the issues; communication may not be their forte; they may be so focused on their specific views that they will not contemplate other opinions, or they may be unfamiliar with the whole conclave/litigation process. A skilled facilitator can manage these dynamics to ensure that the discussion stays focussed, balanced and the objectives are met.
- Promote and simplify discussions: A facilitator will ensure that all experts have an equal opportunity to contribute their opinions and will make sure that one expert does not dominate the conclave. They can redirect discussions if they go off course, can navigate conflicts between the experts and reign in an expert if need be. This can all help to ensure that the most relevant and useful information is shared, discussed and reflected in the joint report.
- Increase efficiency and productivity: A facilitator will ensure that the discussion stays focused, on track and productive. They can provide structure and organisation to the meeting, ensuring that it runs smoothly and efficiently. They can help to manage the time and ensure that all the questions are adequately covered. As a result, the conclave becomes more efficient, leading to reduced costs, while also yielding a more effective and valuable joint report.
- Produce a concise, coherent and effective joint report: Facilitators are well-versed in the Court’s expectations for a joint report and can help the experts finalise their report post-conclave. Through skillful guidance and direction of the discussions during the conclave, they ensure that all questions are explored thoroughly and the experts’ opinions are captured accurately, concisely, and efficiently. This results in a more streamlined and understandable joint report that is well presented and accurately addresses the questions posed.
What can happen without a facilitator
Without a facilitator, an expert conclave can face several challenges that can hinder its effectiveness and productivity:
- Lack of focus: Without a facilitator leading the discussion, the conclave can be unstructured and unfocused, with experts talking over each other and the questions being inadequately discussed.
- Power imbalance: Some experts may dominate the conversation, while others may not have an opportunity to contribute. This can result in important perspectives and ideas being left out of the discussion and a skewed joint report.
- Conflict: Without a facilitator, conflicts between experts may go unresolved, leading to a breakdown in communication and a joint report that does not address the questions.
- Time management: Without a facilitator guiding the discussion and managing the time, conclaves may be so short that the questions are not adequately discussed, or may run so over time that they are inefficient and costly.
- Delayed and inadequate joint report: Without a facilitator assisting the experts to complete the joint report, there is a real risk the report may simply contain a transcript of the conclave, may not answer the questions and may take a long time to be finalised.
The future of expert conclaves
For all the reasons discussed above, it is easy to understand why it’s becoming increasingly popular to retain a facilitator for expert conclaves. Generally, a facilitator plays a critical role in ensuring that an expert conclave runs smoothly and productively. Without one, not only can the cost of the conclave itself be higher, but the overall cost of the proceedings can increase as a result of a poorly prepared joint report.
In 2023, R3 Resolutions launched a new expert conclave facilitation service which removes many of the administrative and logistical issues for parties arranging conclaves. Our service includes liaising with the experts to find a mutually agreeable date, briefing the experts, arranging stenographers if required, facilitating the conclave, and liaising with the experts as they prepare and finalise the joint report. By offering this comprehensive service, we hope to make it easier and more cost-effective for parties to comply with court orders for a conclave.