How independent does an independent expert need to be?

Alternative Dispute Resolution, or ADR, is any method which people, businesses and organisations can use to resolve disputes in a confidential environment, which does not involve a potentially lengthy and costly court trial.

There are many types of ADR methods and one, which is frequently used in the built environment, is independent expert determination. This is a method that appeals to many parties because of its capacity to deal with technical issues and disputes that are concerned with specialist subject areas, as opposed to the resolution of essentially legal matters. It has been used for many years to determine a wide range of disputes involving land, property, and construction.

Independent expert determination generally involves the appointment of a neutral third party who issues a decision on the dispute, which is final and binding on the parties. The decision draws on a mix of the third party’s subject matter expertise, the results of their own investigations into the dispute and their analysis of submissions forwarded by the parties. It is an immensely effective and increasingly popular way to resolve disputes.

A key feature of independent expert determination, which makes it so appealing and widely used, is that the dispute is decided by someone who is impartial and gains no benefit from the outcome. However, even though the role is called “independent expert”, there is an argument to be had that the requirement to be impartial does not necessarily mean that the expert actually needs to be entirely independent.

In the context of independent expert determination, the question of whether an expert is independent is usually concerned with questions arising out of any relationship between the expert and one of the parties, or the subject matter of the dispute. Independence can thus be said to be concerned with the proximity of relationship between the parties and the expert, and how this looks to an objective observer.

On the other hand, the concept of impartiality is exclusively concerned with whether there is actual or apparent bias on the part of the expert, either in favour of one of the parties or in relation to the issues in dispute. Impartiality is less about how things look and more about the state of mind of the expert. Being impartial involves an absence of any personal inclination on the part of the expert to be biased for or against either party. Thus, assessing whether an expert is impartial or not is generally subjective and more conceptual than testing whether they are independent.

Clearly, a failure to be, and to be seen to be, impartial may give rise to a later challenge to the independent expert’s decision. Parties who refer their disputes to independent expert determination should thus be confident that the process will result in a dispassionate and fair decision. They must be satisfied from the outset that their independent expert has no personal or other interest in the outcome that would give rise to doubts about their impartiality. Both before and after they take on the role, an independent expert has a duty to disclose any relevant matters to the parties, which relates to one or both of them and the subject matter of the dispute, in order to maintain confidence with all sides that they will be impartial.

Parties who use independent expert determination desire a decision from someone who has significant expertise in the subject matter of their dispute that will enable them to reach a sensible and informed conclusion. An independent expert will usually be appointed because they have acquired a high level of knowledge and experience the relevant subject area. This can only be achieved if the expert has been regularly involved with people, businesses and/or organisations, maybe over many years, who are also active in the subject area.

It is logical to conclude, therefore, that while an expert must always be impartial, they can rarely, if ever, be totally independent.

Martin Burns
Head of ADR Research and Development, RICS
22 November 2022

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