One challenge for the arbitrator is whether the expert witness is providing evidence that is representative of the norm or is novel even maverick or recognised only by a small minority in the relevant technical community. For example, the evidence may have been taken out of context or with a background based on principles not embraced by the mainstream scientific community. As an arbitrator, you need to check these issues as the evidence is being presented. Don’t be hoodwinked. With experts be on the alert for sleight of hand
At the end of the day you, the arbitrator, have to rely on your analytical + reasoning skills – is the evidence material? is it reliable? – to enable you to decide how much significance you will give to the expert’s evidence
Judges are provided with the following checklist for assessing the expert’s evidence;
1. Are the norms used by the experts consistent or inconsistent with each other?
2. What is the degree of certainty that can be applied?
3. Have any boundaries been crossed between different professional activities?
4. What impression is given by the demeanour and authority of the expert?
5. Is the expert dogmatic or open to reason?
6. Has the expert paid proper attention to the facts of the arbitration?
It is not a question of the arbitrator “having a feel for a witness”. There needs to be more analysis to enable you to reach a considered + rounded decision. To some extent, the arbitrators may be out of their depth with the technical nature of the evidence. But don’t run away + grasp at rushed decisions. You lose control if you abdicate responsibility for the expert. It is your arbitration + not the experts. So, make an effort to understand + ask follow up questions if necessary. The expert serves the arbitration, not the party that appointed him/her.