Joseph P McMahon Jr

Using "Technical Teams" in mediation

One of the factors that delays or inhibits dispute resolution is factual complexity. Factual complexity also may cause settlement decision makers to delay hard decisions and therefore unnecessarily prolong litigation. Both in mediation and direct settlement negotiation, the use of joint technical teams (with an expert or skilled technical representative from each conflicting party) can simplify complex issues. Such teams are referred to as “Technical Teams.” Technical Teams are appointed by and report jointly to the senior negotiating representatives of each party ("Senior Negotiators").

There are several goals for the Technical Team process:

Improve the understanding of complex issues.
Save the energy of the Senior Negotiators for key negotiations rather than discussion of scientific or complex details.
Jointly summarize data and information is ways that are useful for Senior Negotiators.
Preserve the experts' ability to testify in later litigation if settlement fails.
Focus the experts on the Technical Team on fact and science - not on negotiating settlement outcomes.
Reduce the tendency for experts to become "advocates" rather than advisors.

Questions are posed to the Technical Team by the Senior Negotiators. The Technical Team drafts a report on the submitted questions and sends the report to the Senior Negotiators. An article on this subject has been submitted for publication in the June 2005 issue of the Colorado Lawyer.

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Concept source: The author’s first substantial encounter with the concept of using Technical Teams occurred in a mediation conducted by Bob Mnookin, Harvard Law School and Gary Friedman, Center for Mediation in Law. Since that time, the author has used and modified the approach.

Elements of an Agreement to use Technical Teams		Examples of the use of Technical Teams in settlement or mediation
Set up Technical Team and identify each party’s expert. Describe in detail the questions for which answers or improved understanding is sought. If feasible, suggest formats for the Technical Team report. Establish any needed exchanges of data prior to Technical Team meetings. Describe the data that is expected from each party to encourage mutuality in disclosure. Determine how and when the Technical Team will meet (dates or deadlines). Confirm confidentiality of Technical Team process and that it will not affect any subsequent litigation (e.g., information concerning this process will not be sought in discovery or a subject of inquiry in testimony). Describe the report that is desired and confirm that the Technical Team members are to summarize and assess data – not to negotiate outcomes. This may be accomplished with both interim and final reports from the Technical Team.		Assess the pros and cons of various mine plans submitted by each party. Report on the alternative transportation plans for minerals in a natural resources dispute. Recommend methods to categorize disputed financial transactions in a business contract dispute that involved a large number of individual transactions. Make recommendations on how complex and disputed geotechnical hypothesis could be assessed. Propose a consensus recommendation to Senior Negotiators about Superfund remedial actions. Report jointly to mediators on the key legal issues and the factors that drive the various litigation outcomes.


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