Opinion
Facilitated conclave conferences
1st Apr 2021
During litigation in various courts and tribunals, where there is a divergence in expert evidence the experts involved are expected to participate in a conclave conference. This is a forum in which the issues in the matter are discussed and there is an attempt to reach an agreement on those issues where possible, or identify the areas where agreement cannot be reached. Subsequently, the experts are required to prepare a joint report to assist the court detailing the areas of agreement, the areas of disagreement, and the reasons why.
Conclave conferences are becoming more common and various courts are introducing rules, regulations and practice directions in relation to them. In addition, it is becoming more common for the court to direct that conclave conferences occur, particularly if a matter is under court direction or supervision.
There are various matters to consider when preparing for a conclave conference:
- identifying which experts need to participate;
- ensuring that your expert/s understand their obligations to comply with the court rules and the process of a conclave conference;
- ensuring that you have allowed sufficient time to consider the facts, instructions and questions to the expert/s;
- considering whether you need to seek the court’s direction on any matters where agreement cannot be reached with the other side; and
- importantly, determining whether a facilitator is required to assist with the conference.
The role of a facilitator
A facilitator is defined as ‘a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue’ (reg. 31.24 of Uniform Civil Procedure Rules 2005 (NSW)). In practice, a facilitator is usually a senior barrister, mediator or retired judge.
Facilitating a conclave is very different to mediating a matter as the role of the facilitator does not involve the encouragement of a compromise or an agreed outcome. Instead, a facilitator’s role is to encourage discussion among the experts and look for areas of agreement, but not take any active role in changing or altering an expert’s opinion.
The facilitator’s role is to oversee and impose, where necessary, ‘ground rules’ to ensure the efficiency and completion of the task. The facilitator ensures that the experts conduct themselves in an appropriate, respectful manner and ensures that questions are answered by all of the experts participating in the conference.
The facilitator is often the person who drafts the report for the experts. This guarantees that all opinions are recorded accurately and efficiently, for the experts to sign off at the end. This is particularly helpful when there is a short turnaround for the conclave to occur and for the report to be delivered.
Without the appointment of a facilitator, one of the experts ultimately takes on the role of chairing the conclave and drafting the report. This scenario can give that expert authority, control and influence over the other experts. This imbalance of power is avoided when an independent person is appointed to the role of facilitator.
When is a facilitator of assistance?
A facilitator is a particularly helpful tool in matters that are legally and/or factually complex, for example:
- where there is competing expert evidence on substantial issues in dispute;
- where there are numerous experts within the same discipline;
- matters involving experts with contrasting personalities where conflict or tension is likely to arise;
- matters where there are power imbalances, such as one party having two experts and the other party only having one; and
- matters where there is a short turnaround time for the conference to occur and for the report to be delivered.
How to appoint a facilitator
A facilitator can be appointed by agreement or by court orders. Ideally, you should raise the need for a facilitator at the same time that the conclave is being agreed to or ordered. If you are applying for orders of the court, you will be required to detail the reasons why a facilitator is appropriate, based on the specific facts (for example, it is a complex matter, there are numerous experts, etc).
In the case of Coffey v Murrumbidgee Local Health District [2017] NSWSC 1441, the defendant sought the appointment of a facilitator for a medical negligence conclave and offered to bear the additional costs. The plaintiff objected. Ultimately, Campbell J appointed a barrister as the facilitator and stated that:
‘It has been my experience that the involvement particularly of a member of the Bar in that role can be invaluable, and the involvement of a person in those roles however designated in the given case assists in the administration of justice, and in the provision of the joint report by the experts, which is likely to be provided in proper form. This is of assistance to the parties as well as the Court in the resolution of the case.’ (at [9])
Practical considerations for legal practitioners
If you have agreed, or it has been ordered, that a facilitator should participate in the conclave conference, it should also be agreed upon or ordered that the legal practitioners are not permitted to have contact with their experts after the conclave has commenced and before the joint report is signed off. A facilitator can keep the legal practitioners apprised of progress.
Give some thought regarding who would be appropriate to facilitate the conclave conference and put forward a panel of suitable options for consideration. You should ensure that the facilitator and the experts are provided with the same material for the conference and that you have allowed enough time for the facts, questions and materials to be agreed upon and circulated ahead of time.
Conclusion
As conclave conferences become more common, consideration should be given to the appointment of a facilitator in certain matters at an early stage. Practitioners should utilise the court’s direction regarding the appointment of a facilitator where appropriate. In our experience, the appointment of a facilitator is critical for a report to be produced that will be of assistance to the court.
Kirsten Van Der Wal is a medical negligence associate at Maurice Blackburn in Brisbane.
Kathryn McMillan QC is a member of the Queensland Bar and was appointed Queen’s Counsel in 2006.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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