Expert determination is a form of dispute resolution in which the parties use a subject-matter expert, rather than a judge, mediator, or arbitrator with legal training, to decide the dispute.1 It may be the least known form of alternative dispute resolution. In fact, it’s been called the “secret alternative to arbitration.”2 While the term “expert” may call to mind the concept of an expert witness, expert determination actually has its roots in the English common law of “valuation” or “appraisement.”3 Perhaps because we do not generally use the word “expert” to describe the decisionmaker, the concept of a person without legal training acting as the ultimate decider of law and fact may be most familiar in the form of an agreement to resolve a dispute over value through an appraiser or panel of appraisers.4
On October 16, 2017, Administrator Pruitt issued a directive and accompanied memorandum that would eliminate “Sue and Settle” agreements that have been used during the past administration to influence U.S. EPA’s regulations. Sue and settle is a concept where a federal agency agrees to a settlement agreement with special interest groups to create rules outside the normal rulemaking process. This directive would bar these agreements and eliminate plaintiffs’ attorney’s fees in instances where the agency enters into a consent decree or settlement agreement.
The agency’s directive puts forth a 10-point procedure for lawsuits against U.S. EPA. Continue reading