ADR: Non-Adjudicative Options. Early neutral evaluation Flashcards
Early Neutral Evaluation (ENE)
ENE is a non binding assessment an evaluation of the facts, evidence and/or the legal merits of one or more of the issues in the case or of the case as a whole.
It’s usually undertaken on behalf of the parties jointly, although in some cases it can be undertaken at the request of one party only in relation to their own case.
The parties will usually appoint in neutral third party to evaluate the facts evidence and law in relation to the issue or case and provide an opinion on the merits
ENE is an advisory an evaluative process. However there is a close similarity between EN E and evaluative mediation
ENE is used when a neutral third party is asked to evaluate a dispute without themselves becoming involved in any way in the negotiations between the parties. It is this disengagement from the negotiation process that distinguishes ENE from evaluative mediation
ENE can take place within the court system in which case the evaluation is usually carried out by a judge E an E can also take place outside of the litigation process but parallel with it and even before the litigation has been commenced at all.
It is a private and confidential process and the evaluator must be impartial. If the evaluator is appointed using an ADR provider he or she will operate under a code of conduct that may be the same or similar to the code of conduct that governs the conduct of mediators.
At what stage should ENE be employed?
ENE is usually employed at the early stages of a dispute but in fact it could be utilised at any stage. Neutral valuation employed at the early stages of the case can assist settlement by mediation, and can be carried out before or even during the mediation and before or at any time during the process of litigation. ENE can also be used to settle disputes that arise during an assessment of costs after the main proceedings have been included and the costs alternative dispute resolution service offers ENE or an non binding paper assessment of costs.
When should EE NE be used?
The rationale for ENE is that an unbiased evaluation for one or more issues in the case and/or the likely outcome by a neutral party such as a judge or expert will help the party subsequently to settle the dispute by negotiation or even mediation. It can be particularly useful where one or more of the parties has taken an unrealistic and entrenched view of one or more of the issues, or the case as a whole, and would benefit from an assessment of the particular issue or the case by an independent person. It is particularly useful if the issues depend more on analysing or applying law, technical or specialist processes, or evidence to a given set of facts, rather than opposing factual evidence.
The process can be useful in that it enables each party to appreciate the strengths and weaknesses of the case and this in return can encourage and lead to settlement, even if the parties do not agree to settle on the basis of the evaluation.
Procedure
The manner in which the evaluation is conducted will be primarily decided by the evaluator, although the evaluator you will usually fix the procedure after consultation with the parties. The process is flexible and the parties can tailor it to meet their needs of the case. The parties can control the amount and form of the information that is placed before the evaluator, and they can identify the issues of fact or issues of law or both that they want the evaluator to evaluate.
The evaluator you will usually be instructed by both parties (although as stated above, it is possible for one party only to seek an evaluation of some or all of the issues in their case).
Where an evaluator is instructed by both parties, they will both agree the terms on which he or she is instructed and the I’m bit of the instructions. The parties can also agree that the evaluator should carry out his or her own investigations independently of the parties, and make a recommendation based on those investigations
Once appointed, the evaluator may wish to hold a preliminary meeting with the parties to agree the ground rules, the documentation to be provided, whether a hearing is required, and to set time limits for each stage of the process.
The procedure usually provides for each instructing party to make written submissions to the evaluator, together with such evidence and supporting documents as they see fit. It is also possible to agree that each party should present some or all of their case at an oral hearing. The evaluator may also wish to hold a meeting with the parties (instead of or in addition to a formal hearing) to obtain further information about the issues in dispute.
The evaluator will evaluate the evidence, oral and or written, and the law bearing in mind the submissions of each party and produce air accommodation setting out his or her assessment of the merits of the dispute and the likely outcome of it. The recommendation may or may not contain detailed reasons for the decision depending on the agreement reached between the parties and the evaluator.
The evaluation is non binding and the parties do not have to accept it although they can agree subsequently to settle their dispute in accordance with their recommendations in it.
Judicial evaluation
ENE can be carried out by a judge, in a court, with the aim of helping the parties to settle the case.
The judge will consider the legal and factual issues, evaluate the evidence and any submissions of the parties, and issue an non-binding recommendation or evaluation.
If the parties ask a judge to express a provisional view on the whole case or issues in it, then it is part of the judicial function for the judge to agree to do so. This gives the party some indication for the likely outcome at trial.
Judicial evaluation can have a strong persuasive effect on the parties, who may then adopt the judges recommendations in settling the dispute.
It is particularly useful if the case raises limited areas of factual dispute. It is also useful if there is a significant difference of opinion between the parties about the value of the claim, or where they have different perceptions of the strength of the claim or specific issues.
An ENE hearing, conducted by the judge, can provide the parties with guidance on the court’s view of quantum.
