Early Neutral Evaluation Gains Popularity


This article originally published in The Briefs magazine of the Orange County Bar Association in Orlando, Florida discusses the Alternative Dispute Resolution technique in litigation known as Early Neutral Evaluation (ENE) that:

-Enhances direct communication between the parties about their claims

and supporting evidence;

-Provides an assessment of the merits of the case by an experienced legal neutral, amounting to a 'reality check' for clients and lawyers;

-Identifies core issues in dispute while assisting with discovery planning (including ESI or electronically stored information); and

-Facilitates settlement discussions when requested by the parties before the evaluation.


Perhaps because of the still struggling economy or the realization during the recession that the cost of litigation is not trivial, Early Neutral Evaluation (ENE) is evolving as a vogue form of ADR. This process, becoming popular out on the West coast, is a corollary of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment on the merits of the case by a neutral expert in an early reality check for clients and lawyers alike. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management.

A court-appointed neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel, once the parties request ENE. Following presentations consisting of a confidential exchange of factual information, the evaluator identifies areas of agreement, clarifies the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. The parties' formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary and the monetary estimate of continuing toward trial. A new publication from the ABA on ENE thoroughly outlines the process based on the trendsetting federal local rules of California's Northern District. Essentially, ENE aims to position cases for early resolution, serving as a cost-effective substitute for formal discovery and pretrial motions.

[See PDF for entire article and citations]


Lawrence H. Kolin, Esq., is a full-time Federal and Supreme Court of Florida Certified County, Circuit-Civil and Appellate Mediator. He served as Founding Chair of The Florida Bar Civil Procedure Rules E-Discovery Subcommittee and Founding Chair of the Orange County Bar Association’s ADR Committee. He authors a blog located at: http://www.abajournal.com/blawg/Orlando_Mediator

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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