556 V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 THE ADVOCATE
evidentiary mix. Experts asked to resolve a dispute are likely to be less
familiar with the role they are being asked to play and what ground rules
govern their engagement. The parties themselves, faced with a disarmingly
clear-looking resolution provision in an agreement, may also be unaware of
the implications of not establishing at the outset what the role of the expert
is intended to be. Although it may not be specified as such, are they in fact
being asked to act as an arbitrator? For the process to work effectively both
the expert and the parties need to understand exactly how that role is
defined and what the implications of the possible alternatives are.
An area I am most familiar with is that involving real estate valuation.
The need for resolution of differences comes up most frequently in the context
of lease rent reviews or where a contractual or other relationship
requires a specific determination of value. The resolution process will typically
be found in the contractual document itself. Most frequently this will
be through arbitration, but there are often instances where a mechanism
other than arbitration is specified by the parties. Such a mechanism is usually
intended to avoid the adversarial process by appointing an expert, or
experts, to express an objective, professional opinion. There is frequently a
formula, often quite creative, to establish a mechanism for bridging any
gaps. If the process is considered to be a de facto arbitration, the rules under
which the expert is to operate are clear: they are set out in the Arbitration
Act and the rules of the B.C. International Commercial Arbitration Centre.
For an expert-based resolution process the mechanisms and rules are not so
prescriptive and in the absence of clear direction require the appointed
expert(s) to seek that clarity from the parties before proceeding.
An example might be useful at this point to illustrate the kind of situation
I am describing. Imagine a purchase and sale agreement that provides for
the purchase price to be resolved by the parties each appointing an
appraiser; in the absence of resolution, a third appraiser is to be appointed.
Having failed to reach agreement based on the first two appraisals, the parties
are nevertheless keen to avoid repeating the entire appraisal process
and ask the third expert to review the other reports and express an opinion
based on them. At this point, the third appraiser needs to think carefully
about what they are being asked to do. Reviewing evidence in the form of
reports will be a familiar process to them, but if they are to express an opinion
they will need to be sure both parties agree on the ground rules: Do the
parties intend that the opinion will be binding? Is the appraiser to act as an
arbitrator or expert? What are the procedures regarding provision of information
by the parties? How should the parties be permitted to respond to