ch 22 Flashcards
1) What is early neutral evaluation?
- Non-binding assessment and evaluation of dispute
- Parties appoint neutral ind 3rd p
- ADVISORY
2) What does 3rd p evaluate?
• Facts, law and evidence of issue
3) Difference between ENE and (evaluative) mediation?
ene is advisory and evaluative
NOT facilitative
no involvement in negotiations
is it private and confidential?
yes
when is ENE usually employed?
early stage
when can ENE be employed?
any stage
can ENE be used during an assessment of costs?
yes
when is ENE most useful?
entrenched parties
technicalities
biggest use of ENE?
enables parties to understand strengths and weaknesses
how is evaluator chosen?
depends on issues
2 ways parties can choose an evaluator?
privately appoint
ADR provider
who decides how procedure goes?
evaluator after consulting parties
why do parties have control?
decide what info to give
identify issues of facts and law they want evaluator to evaluate
can the evaluator do their own investigations independently?
yes
is the evaluation binding?
no
what else might party ask evaluator to do?
non-binding neutral fact finding of issues
can ENE be done by a judge?
yes
what will judge do as evaluator?
evaluate law and facts
evaluate submission and evidence
does a judge have to provide a view if parties ask?
yes
why might judicial evaluation be preferrable?
idea of likely outcome at trial
more likely to adopt judge’s recommendations to settle
can the commercial court provide an ENE?
yes
does judge in commercial court have to do ENE?
no only after discussion with counsel
and if they feel it will aid dispute resolution
will only do it with agreement of the parties
how will ENE happen in commercial court?
judge in charge nominates a judge to conduct ENE
conducting judge has no further role
can ENE take place in technology and construction court and mercantile court?
yes
