Did you know there is an ADR process called “hot-tubbing?” This was news to me when I heard it mentioned last week at the Court ADR Symposium (which occurs every year on the day before the ABA Dispute Resolution Section Conference). As I understand it, the process is used sometimes in arbitration when there are conflicting expert opinions. Basically, the idea is that rather than simply hear expert testimony from each side sequentially, the arbitrator questions the experts concurrently. Hot-tubbing has been used in court settings in Australia, England and Wales, as well as in arbitration.
With my interest piqued, I sought out an experienced international arbitrator to give me more insight into hot-tubbing. He suggested that it is particularly helpful when there is a significant disagreement between the experts and when the arbitrator needs to be educated about the intricacies of the underlying case. For example, this could be useful in a complex construction case with complicated engineering issues. He cautioned that hot-tubbing is not something to spring on American lawyers if they have limited experience with international arbitration. This is because, broadly stated, experts in the U.S. legal system tend to have an allegiance to their clients whereas experts in Europe have a responsibility to the tribunal.
Nonetheless, this introduction does make me wonder if hot-tubbing could be used in other settings. And I wonder if it might be more likely to be accepted if it is called by its more formal name, Concurrent Expert Evidence Direction. Whatever you call it, this is an interesting idea.
UPDATE: Respected, Chicago-based arbitrator Stanley Sklar recommends calling this process Tandem Experts. Read the article he wrote for the AAA magazine about this process for more insight.
Tags: arbitration, Hot-tubbing, international
I will sometimes do something similar in mediations. Trials and arbs often come down to dueling experts. And most parties can find an expert to validate their position. So the more likable expert usually prevails.
In mediations, I will sometimes mediate between the parties’ experts to find areas of common ground (and hence avenues for resolution). At other times, I’ve asked the parties in a mediation to choose a joint expert — not for use at trial or in an arb — to help thresh out expert-based issues and almost act as an umpire or co-mediator. I’ve found both techniques effective.