Expert determination is a funny old process. I occasionally get involved, doing something with my time other than adjudicating (or training for triathlons). It’s the same with arbitration or mediation.
In some ways, expert determination has many parallels with adjudication: it’s quick, there are limited submissions and the parties rights are determined. However, the overriding difference is the fact that the “expert” is being asked to provide an opinion on a technical matter and that typically results in a binding decision (as we all know, adjudication is only temporarily binding).
As far as I am aware, unless the contract provides otherwise, there is only a very limited right of appeal from an expert’s decision in expert determination. That means it is important for the expert to get the answer to the question right. (Arguably the expert may be liable in negligence if he gets it wrong, but that may be of little comfort to the parties who have to live with the consequences of the expert’s determination.)
Expert determination has a number of advantages over other forms of ADR, not least that it can be cheaper and quicker. The expert also has to adopt an inquisitorial approach, essentially investigating the question he has been asked to decide. Having someone with the right technical skills is extremely important.
I was recently asked to decide certain issues during the defects liability period on a building. I was given five days to come up with a final and binding decision, with reasons, from receipt of the parties’ submissions.
While, initially, the prospect of reaching a decision in such a short space of time appeared to be a daunting one, on reflection the five days I had to reach my decision was not actually that dissimilar from what often happens in adjudication. I say this because, while adjudication is seen as a 28-day process, once the parties have finished making their submissions, in the majority of cases I will only have about five working days left to reach my decision.
Expert determination v adjudication
Expert determination may not be appropriate in every case but, on reflection, I felt that it worked well for this particular dispute. Adjudicating the same dispute would have been more expensive for the parties, not least because I would have had to deal with more procedural issues.