Court cases can be long, stressful and costly. If you have a dispute with another party then you should consider methods of Alternative Dispute Resolution (ADR) which could be used to resolve your issue quicker, easier and cheaper. These days , you will be actively encouraged by the courts to engage with ADR, as going to court should be a last resort and any refusal to take part in an ADR process will be taken into account by a Court (in a negative way) when determining costs of a claim.

 

What is Early Neutral Evaluation (ENE)?

ENE is just one form of ADR which parties may choose to implement.  Its aim is to provide the parties with a realistic and objective view of the strengths and weaknesses of their cases in order to assist with negotiations. An independent and impartial evaluator is appointed to assess the merits of the case, and effectively act in a similar way to a judge providing insight into potential outcomes of further litigation. It has most commonly been implemented in family disputes; however, it is now being used in all areas of dispute resolution including, property, construction, general commercial and financial disputes.

 

When to use ENE?

This form of ADR can be used in relation to questions of fact, evidence, technical issues, legal merits or any combination of those things. Matters for which ENE may be useful include:

 

  • Where the case is quite simple, but the parties have a large disparity of opinions;
  • Where one party has not been provided with legal advice and may have an unrealistic view of its prospects of success;
  • Where a matter is multi-faceted and one or two particular issues could be resolved outside of court, or that one issue may be determinative of the others;
  • Where the parties have reached an impasse on technical or legal aspects of the matter; or
  • Where the parties simply wish to keep the matter private and confidential.

 

The depth of the analysis that parties will receive from the evaluator will vary in accordance with their experience, the time provided for the evaluation, the complexity of the issues, and the materials presented to the evaluator by the parties.

 

What is the outcome of using ENE?

Although the evaluator will assess the case and comment on the merits, they have no power to impose any settlement and will not attempt to force the parties to accept any proposed settlement terms. They are under no obligation to provide suggested resolutions and will not resolve the matter unless they are specifically asked to do so. This means that the process is non-binding and will usually be conducted without prejudice, meaning the outcome cannot be disclosed to the courts. Despite this, the analysis made by the evaluator can be used by the parties to come to a settlement privately, or used in mediation following the evaluation. The process also allows the parties to obtain an impartial appraisal regarding the strengths and weaknesses of their case.

 

What are the benefits and potential risks of implementing ENE?

It can be a quick process, provide a reality check for parties by identifying weaknesses in their cases and gaps in their evidence. It is a more practical and robust way to help parties understand the risks in pursuing a litigation claim and subsequently can lead to parties entering into settlement discussions. It can also encourage the parties to move towards a more realistic starting point with any settlement negotiations they may undertake.

Even if the ENE does not result in a settlement being reached, the process can narrow the issues and focus the parties’ attention on the most important aspects of their cases, as it can identify and clarify the central issues in the dispute.

As with any dispute resolution there are some potential risks to implementing ENE. It could have the effect of entrenching one party’s position, hindering the possibility of any settlement. Alternatively, once the evaluation has been made it may be difficult for a losing party to recover from this which could, in turn, compromise that party’s negotiating position.

Depending on the complexity of the matter, it may be that the preparation required could render the process disproportionately expensive when the result is non-binding and may not lead to settlement. If the matter is very complex and cannot be dealt with separately, then consideration of the whole may be time-consuming, making the evaluation take too long with too many caveats to provide any real assistance.

All in all, ENE can be extremely helpful when utilised in the right manner for the correct type of matter, and so should be considered as an option when possible.

If you are intending to pursue a claim, and would like to discuss the possibility of Early Neutral Evaluation being used in greater detail, please contact our Dispute Resolution Team on 01206 700113 or contact us