Roles when Acting in Dispute Resolution

Roles when Acting in Dispute Resolution

There are three principle and distinct roles in representing a client in an arbitration, tribunal or court proceedings:

• the advocate
• the witness of fact
• the expert witness.

While appointed by a party to the issue, all have duties to the process and the court, arbitrator or tribunal

The Advocate – This is the person who presents the arguments (but not evidence) for the client, making their case in a partisan role but still assisting the court fairly and helping the process move forward to an answer.

The advocate may introduce the arguments for the client, examine and re-examine witnesses and conclude the arguments.

The Witness of Fact – Such witnesses provide purely factual evidence as to events or circumstances as, for example, describing a farm. The witness of fact does not give opinions.

The Expert Witness – The expert witness is the one person entitled to offer an opinion but it is to be objective and professional, helping the process with the benefits of relevant professional experience and insight. It is not a partisan role but a professional one.

The expert should indeed be expert in the subject of the evidence and not stray into other areas. If an issue arises that would change an expert’s opinion, that must be stated.

The expert should not be compromised by a substantive conflict of interest that would cast doubt on the objectivity of the expert’s opinion. In particular, there must be no financial arrangement linked to the result, such as a contingent fee or the clear prospect of later business. If such an issue is found, it could see the entire evidence of that witness discounted.

The experts on a topic, such as the valuation of a farm, for each party may be asked to meet and identify the issues between them, what they agree and where and why they disagree. They may be subject to examination by the other party’s advocate or jointly taken through the topics by the arbitrator, testing their professional views together (“hot tubbing”).