Last edited 26 Sep 2017

Expert determination

Expert determination is a form of alternative dispute resolution in which an independent third party who is an expert in the subject to be considered is appointed to decide the dispute. The expert’s decision is binding on the parties, unless the parties agree otherwise at the outset.

Expert determination is particularly suited to valuation disputes or technical issues which can be determined by a technical expert, rather than detailed legal issues. It can also be used for issues such as rent reviews, insurance wording disputes, fitness for purpose, and boundary disputes. It is ideally suited to multi-party disputes because of its informality and flexibility.

The expert is someone who has been agreed by the parties to be such. The person can be agreed prior to a dispute arising, or can be appointed by the relevant institute or association that the expert represents.

A lawyer may be appointed as the expert, or ‘expert tribunals’ can be formed consisting of one lawyer and one expert, typically with the lawyer having the final say. This is particularly useful where there is a mixture of technical and legal issues to resolve.

Expert determination is generally simpler and cheaper than arbitration or court proceedings, and can be used as a short cut to a binding decision. Unlike arbitration, the expert does not need to refer back to the parties before making the decision.

Expert determination may be written into the parties’ contract as a means of resolving any disputes, or it may be used to resolve an existing dispute in preference to the system set out in the contract. It is often used in conjunction with another dispute resolution system, such as mediation. The parties are able to resolve parts of a dispute about which they would prefer not to mediate, thereby reducing the time taken and costs.

Some of the advantages of using expert determination include:

It is a confidential procedure which is less adversarial and helps parties maintain a working relationship.
It provides a cost and time efficient solution for resolving disputes.
The procedures are controlled by the parties rather than a court or arbitration rules.
Unless otherwise agreed, the outcome is final and binding on the parties.
An expert can be appointed who is familiar with the technical issues.

In England and Wales, an expert’s determination can be enforced in legal proceedings. Courts in other jurisdictions however, may not readily enforce an expert’s determination, and therefore disputes arising out of some international contracts may be better resolved by another dispute resolution method.