Expert Determination investigative
Expert Determination is an investigative procedure, where the ADR practitioner, acting as an expert reviews the parties’ evidence and submissions and and makes a determination, binding or non-binding, as agreed by the parties.
By selecting Expert Determination, parties seek to avoid the costs, uncertainty, time delays and publicity associated with traditional litigation. Litigated decisions are always subject to appeal and even arbitrations are reviewable (subject to certain qualifications).
Especially where technical issues are involved, Expert Determination provides a flexible and fast procedure. As a private dispute resolution process, the parties are free to select their own Expert and the rules that will apply to the determination process.
Although there is no legislation governing Expert Determination, Australian courts have show that they will uphold a provision in the parties contractual agreement to resolve disputes by this process. Courts have also held, that unlike adversarial hearings, there is no requirement on an Expert to allow the parties the opportunity to make submissions and will enforce an Expert’s determination, even where it is established that it is wrong.
Using Expert Determination provides certainty that the party’s (contractually) agreed process for resolving any disputes will be employed. Under the Expert Determination process, the Expert conducts the procedure in accordance with designated and agreed rules and makes a determination that is indicative and advisory or final and binding, as agreed between the parties.