ADR: Early Neutral Evaluation Flashcards
What type of ADR is Early Neutral Evaluation?
Is it binding?
Who is it normally undertaken by?
Who makes the assessment?
Is it private?
Within what can it take place?
NON-ADJUDICATIVE
NON-BINDING
Usually undertaken by parties jointly but can be undertaken by one party in relation to their own case
Parties usually appoint a neutral third party to prove an opinion after evaluating the facts, evidence and law in relation to the issue
Yes - Private and confidential
Can take place within the court system, in which case usually carried out by a judge
At what stage should early neutral evaluation be used?
In the early stages of litigation (clue in the name) but can be used at any stage
Can assist in settlement by other means later
Can also be used to settle costs disputes after main proceedings
What are some of the advantages of ENE?
Allows parties to consider strengths and weakness of their case
Unbiased, impartial evaluation of issues
Private and confidential
May be helpful when 1 party is particularly entrenched
May be helpful when resolution depends on analysis or application of law
Who decides how the evaluation will be conducted?
How will an evaluator be instructed?
What can also agree to allow evaluator to do?
Does the evaluation contain detailed reasons?
Normally the evaluator after consultation with parties
Instructed by a joint instruction letter, setting out what needs to be evaluated, parties can agree the evaluator can carry out their own investigations
Reasons = depends on what was agreed between parties and evaluator, but can do
When ENE is carried out by a judge, what will the judge do in relation to preparation and conduct of the ENE?
What may this include?
Judge will give appropriate directions fo preparation and conduct
Directions generally agreed by parties
May include:
Stay of proceedings whilst ENE is carried out
Direction for particular documents to be provided
Direction ENE to be carried out entirely on paper
Details on oral hearing if there is going to be one
Agreement as to if ENE + documents provided are to be without prejudice,
Advantages of judge ENE
Will the judge conducting the ENE hear the trial, if it proceeds to a trial?
Give parties indication of likely outcome at trial - reality check
Strong persuasive effect, judge is a respected authority
If there is a 1 day hearing, parties feel as if they had their day in court
________
ENE judge WILL NOT be same judge as trial judge (unless parties agree otherwise)
