ch 22

Question 1

1) What is early neutral evaluation?

Answer 1

• Non-binding assessment and evaluation of dispute
• Parties appoint neutral ind 3rd p
• ADVISORY

Question 2

2) What does 3rd p evaluate?

Answer 2

• Facts, law and evidence of issue

Question 3

3) Difference between ENE and (evaluative) mediation?

Answer 3

ene is advisory and evaluative
NOT facilitative
no involvement in negotiations

Question 4

is it private and confidential?

Answer 4

yes

Question 5

when is ENE usually employed?

Answer 5

early stage

Question 6

when can ENE be employed?

Answer 6

any stage

Question 7

can ENE be used during an assessment of costs?

Answer 7

yes

Question 8

when is ENE most useful?

Answer 8

entrenched parties

technicalities

Question 9

biggest use of ENE?

Answer 9

enables parties to understand strengths and weaknesses

Question 10

how is evaluator chosen?

Answer 10

depends on issues

Question 11

2 ways parties can choose an evaluator?

Answer 11

privately appoint

ADR provider

Question 12

who decides how procedure goes?

Answer 12

evaluator after consulting parties

Question 13

why do parties have control?

Answer 13

decide what info to give

identify issues of facts and law they want evaluator to evaluate

Question 14

can the evaluator do their own investigations independently?

Answer 14

yes

Question 15

is the evaluation binding?

Answer 15

no

Question 16

what else might party ask evaluator to do?

Answer 16

non-binding neutral fact finding of issues

Question 17

can ENE be done by a judge?

Answer 17

yes

Question 18

what will judge do as evaluator?

Answer 18

evaluate law and facts

evaluate submission and evidence

Question 19

does a judge have to provide a view if parties ask?

Answer 19

yes

Question 20

why might judicial evaluation be preferrable?

Answer 20

idea of likely outcome at trial

more likely to adopt judge’s recommendations to settle

Question 21

can the commercial court provide an ENE?

Answer 21

yes

Question 22

does judge in commercial court have to do ENE?

Answer 22

no only after discussion with counsel
and if they feel it will aid dispute resolution
will only do it with agreement of the parties

Question 23

how will ENE happen in commercial court?

Answer 23

judge in charge nominates a judge to conduct ENE

conducting judge has no further role

Question 24

can ENE take place in technology and construction court and mercantile court?

Answer 24

yes

Question 25

how will evaluation usually take place in TCC?

Answer 25

parties agree that judge ought to evaluate

seek an order at case management conference for an ENE

Question 26

what happens after judge evaluation in TCC?

Answer 26

no further judicial role

Question 27

is there ENE in chancery court?

Answer 27

yes