Independent expert opinion for conflict resolution in family businesses

The opinion of an independent expert for conflict resolution is a figure that will take on paramount importance in the coming months. This is because the way we understand access to legal proceedings, in civil or commercial matters, will change forever from this coming April, when Law 1/2025 of 2 January on measures for the efficiency of the Public Justice Sector comes into force. 

The previous sentence sounds grandiose, but the reform being introduced is of significant importance: in order to file a lawsuit, it will be necessary to prove that one of the so-called Appropriate Means of Dispute Resolution (MASC) has been previously carried out, so that it can be certain that, before resorting to legal action, an agreed solution has been sought.

This new regulatory provision has a dual purpose. On the one hand, it aims to relieve congestion in the administration of justice and, on the other, to address conflicts from a different perspective. This can be seen in the Preamble to Law 1/2025, which calls for ‘the values of solidarity and humanism’ to be taken into account when dealing with a dispute. And if, in general terms, it is considered necessary to seek alternative ways to litigation, this is even more important when the conflict arises in a family business.

We have repeatedly referred to this issue, always pointing out the advisability of resolving disputes within the family business outside the courts, for example through arbitration, including internal arbitration, and always including this in the family protocol, which should contain provisions in this regard. And this insistence is not capricious: if all legal proceedings cause wounds, it is clear that proceedings between family members cause deeper wounds that are more difficult to heal. Hence the importance of exhausting all other avenues first.

The role of the independent expert in conflict resolution

Article 18 of Law 1/2018 establishes the opinion of an independent expert as one of the MASCs that may be sought. This is not a new concept, although it is new to propose it as one of the expressly provided avenues prior to any legal proceedings. Its main characteristics are as follows:

• The opinion will not be binding, and the Law does not provide for the possibility of the parties agreeing that it should be, which is consistent. If the opinion were to be made binding, the independent expert would become a covert arbitrator.
• The opinion may deal with legal issues or other matters, provided that they are related to the expert's professional competence.
• The opinion issued shall be confidential, so that neither party may disclose its content in any subsequent legal proceedings. And, of course, the expert may not participate in any way (either as a witness or as an expert) in such proceedings. 
• The independent expert for conflict resolution must meet the two requirements that his or her own title already incorporates. On the one hand, he or she must have solid knowledge of the subject matter on which he or she is to give an opinion and, on the other hand, he or she must act with absolute impartiality, adopting his or her own position, which cannot be influenced by either party.

It might seem that this method poses a fundamental problem: since each of the opposing parties has its own view on the controversial issue, one might suspect that the expert's opinion will not be accepted by the party that sees it as contrary to its initial thesis. And while we cannot deny that this is a logical assumption, experience shows (especially in conflicts within family businesses) that sometimes it is enough to hear an outside (and authoritative) voice to accept what was previously impossible to reconcile internally.  

Only time will tell if this is ultimately the case. Only as conflicts arise and are submitted to the opinion of an independent expert will it be possible to know whether or not this is a useful and appropriate method for conflict resolution. But what we can say from the outset is that this is a figure that has much greater significance than it may appear at first glance.

Confidentiality and effect on any eventual proceedings

Despite the confidence we have just expressed in the usefulness of this mechanism in avoiding the need for legal proceedings, it is clear that there will be cases in which, because one of the parties does not accept the independent expert's opinion, the dispute will end up in court. It is therefore important to consider what influence the existence of this opinion may have in such cases.

As we have already indicated, it is confidential. Consequently, neither party may use it: it may not be submitted to the proceedings as documentary evidence, much less as an expert report. And yet the temptation to do so will be enormous for the party that considers it to be in line with its thesis, insofar as the opinion would not only meet the basic requirement of expert evidence (being the expert opinion on a technical issue), but would also avoid the most frequent risk of a party-appointed expert, which is the threat to the expert's independence. In this case, since the opinion was issued without any connection to either party, it is obvious that it would have a particularly significant value. 

As this is not possible, the opinion of an independent expert will not have a direct impact on the process, but it will have an indirect one. For the favoured party, it will serve as a practical guide for action: their procedural position may be based on the premises set out in the report. And for the disadvantaged party, it will serve as a warning of risks: their procedural position will already know what issues to guard against. It could be argued whether or not the use of this previously obtained information is legitimate, but it seems so clear that it cannot be avoided that it is pointless to even open a debate on the matter.

How to determine who will be the independent expert

Finding and selecting an expert is relatively straightforward, as there are many excellent professionals available. However, finding and selecting an expert who is considered (by all parties) to be truly independent is more complicated. And once a conflict has arisen, it seems impossible: if one party proposes an expert, the other party will reject them.

Therefore, the independent expert must be selected in advance, before the conflict arises. And although this can sometimes be difficult if the subject matter of the dispute is not known, it is easier to do so in other, perhaps more common, cases, such as those of a legal nature. Since many of the disputes will relate to corporate issues, it is clear that the independent expert must be a lawyer who is an expert in this field and, specifically, in corporate issues affecting family businesses.

Therefore, it is best to indicate in the family protocol—in the same way that an arbitration clause may be included—who will be the independent expert responsible for resolving any disputes. A lawyer, to rule on corporate conflicts or even those related to the application of the protocol itself; an expert in the sector to which the company belongs, if it is anticipated that there may be conflicts that require this type of knowledge; etc.

And to avoid the risk that, for whatever reason, the appointed expert may not be able to fulfil this future task, it is advisable not to appoint a specific person, but rather an institution that can appoint—from among its experts—the person considered most suitable (and, of course, independent) to deal with the conflict. Universities with Family Business Chairs, Family Business Associations or Professional Associations may be very suitable institutions for this purpose.

Our lawyers who are experts in family businesses are accustomed to dealing with all the conflicts that arise in them, so they can respond to any need that arises in this field, even for the purpose of issuing an independent expert opinion. Contact them here:

• More information about Family Business

Antonio Valmaña – Family Business Group

Director in the litigation and arbitration area