A discussion between experts is not a contest and is not intended to produce a winner. Its purpose is to identify the genuine areas of agreement and disagreement, test the reasoning behind each opinion and narrow the medical issues that remain unresolved.
The discussion has a defined purpose.
Under CPR 35.12, experts may be directed to discuss the expert issues and, where possible, reach agreed opinions. The discussion should identify what is agreed, what remains disputed and the reasons for any continuing disagreement. It is not a negotiation intended to settle the whole claim.
This distinction matters. Experts do not represent the parties who instructed them during the discussion. They are not expected to defend every sentence of their original reports or protect a particular valuation. The proper aim is to reduce unnecessary disagreement. Two reports may use different terminology while expressing similar views. Alternatively, the apparent difference may depend upon a factual assumption rather than medical opinion.
For example, both experts may agree that a particular injury would ordinarily resolve within six months. Their conclusions differ only because one assumes that the claimant had recovered before a later accident, while the other assumes that symptoms were continuing.
Identifying that distinction leaves the factual issue to be determined elsewhere and prevents a medical disagreement from being overstated.
Preparation should begin with the reports.
An expert should review both reports carefully before the discussion.
The task is not simply to reread their own conclusions. The expert should identify where the other report relies upon different facts, applies another diagnostic framework or interprets the records differently.
Relevant medical records, imaging, written questions and later evidence should also be reviewed. If new documents materially affect the opinion, the expert should not wait until the discussion to mention them.
A discussion is most productive when each expert can explain the reasoning behind the opinion rather than repeat the conclusion. “I disagree” is not enough. The expert should be able to identify the clinical evidence, assumptions and professional principles producing the difference. Experts must remain objective, consider facts that may weaken their opinions and make clear when they cannot reach a definite view because information is insufficient.
The agenda should focus the discussion.
An agenda is commonly prepared before the meeting, particularly in more complex claims. It should identify matters already agreed and summarise the remaining issues concisely. The agenda may ask whether the experts agree on diagnosis, causation, prognosis, treatment, work capacity or care needs. It may also identify a specific conflict in the records requiring consideration.
Practice Direction 35 states that an agenda should help experts focus on the issues and must not consist of leading questions or adopt a hostile tone. It should be circulated early enough for proper preparation. A poor agenda attempts to cross-examine one expert through a series of loaded questions. A useful agenda gives both experts a neutral structure within which to explain their views.
The agenda should not prevent discussion of a material issue that emerges during the meeting. Any further issue can be recorded in the resulting joint statement.
Lawyers are not usually in the room.
Unless otherwise directed or agreed by everyone involved, the parties and their legal representatives do not attend the experts’ discussion.
Where lawyers are present, they should not ordinarily intervene except to answer a question from the experts or advise on a point of law. The experts may also choose to conduct part of the discussion without them. This protects the independence of the process. The discussion should take place between professionals applying their own expertise, not between legal teams speaking through medical witnesses.
Those instructing an expert must not tell them to avoid agreement or postpone agreement on an issue within their competence. An expert cannot properly accept such an instruction, the expert does not require permission from the instructing solicitor to agree with the other expert.
Agreement is not a concession.
Experts sometimes approach the discussion defensively because they fear that changing or narrowing an opinion will be interpreted as weakness.
That fear produces poor meetings. If the other expert identifies a factual mistake, overlooked record or stronger interpretation, the proper response is to reconsider the opinion. Agreement reached after professional discussion is not an improper concession. It is often evidence that the process has worked.
The expert should not agree merely to appear reasonable or bring the meeting to an end. Nor should they maintain a position that can no longer be supported simply because it appeared in the original report. Where an expert significantly changes an opinion, the joint statement must record the change and explain it. Guidance also requires a material alteration of opinion to be communicated promptly.
A changed opinion supported by clear reasoning is more defensible than an original conclusion preserved through pride.
The discussion itself is protected.
The content of the discussion is not ordinarily referred to later unless the parties agree. This allows experts to explore possible agreement, ask direct questions and reconsider their positions without every remark becoming separate evidence. The protection applies to the discussion, not to the final joint statement.
Experts should therefore speak openly but carefully. The discussion is professional work, not an informal private conversation. Confidential information must still be handled properly, and each expert remains responsible for any opinion ultimately expressed. Personal criticism has no place in the meeting, the experts should address evidence, methodology and reasoning rather than speculate about one another’s motives or experience.
The joint statement is the important outcome.
Following the discussion, the experts prepare and sign a joint statement. It should record the issues agreed, the basis of that agreement, the matters still disputed and concise reasons for disagreement. It should also identify any new issue and any further action that may help resolve the remaining differences.
Practice Direction 35 requires the statement to be signed as soon as practicable and, in any event, within seven days of the discussion. Copies must then be provided to the parties no later than 14 days after signing.
The statement should be understandable without a transcript of the meeting. A bare entry stating “experts disagree” is inadequate. The reader needs to know whether the disagreement arises from clinical judgement, different factual assumptions, incomplete evidence or the limits of available research. The document should remain concise. It is not a second pair of full reports.
A well-conducted discussion does not require experts to agree on everything. It requires them to discover precisely why they do not.
When that happens, broad disagreement is replaced by a smaller number of clearly defined questions. That is the real value of the process: not forced consensus, but disagreement that can finally be understood.
