WHAT IS EARLY NEUTRAL EVALUATION AND HOW CAN IT HELP COUNSEL AND CLIENTS?
March 6, 2012
Written By: Erica Garay, ADR Attorney, Meyer, Suozzi, English & Klein, P.C.
What is ENE?
“Early Neutral Evaluation” [ENE] is a type of Alternative Dispute Resolution [ADR], by which counsel retain a neutral third party to help them analyze legal (and factual) issues and to reduce litigation time and expense, thereby assisting the parties in resolving their disputes. In some ways, it is a combination of “facilitative” and “evaluative” mediation.
ENE helps parties pinpoint the strengths and weaknesses of each side’s case. It usually takes place after some exchange of discovery has taken place, although the Evaluator can assist the parties in exchanging information so that the process is successful.
After choosing an Evaluator, counsel will “meet” with the Evaluator over the phone, to schedule the process. Counsel can advise if certain discovery or information is needed. The Evaluator will receive copies of the important pleadings and schedule the service of position statements that outline the facts that are undisputed and in dispute, the major legal issues, and the party’s position on the legal issues. After reviewing such, the Evaluator will advise whether he/she needs further briefing or oral argument to narrow the focus on the facts and legal issues in dispute, and, if not, will focus the parties on the factual and legal issues in dispute (and give each side an opportunity to comment on such, as well as to point out other factual or legal disputes). Another round of focusing and position statements may take place; the Evaluator uses joint sessions, akin to an oral argument to further focus the parties. Each side is asked pointed questions, and can possibly ask each other questions. However, the parties are not examined or cross-examined.
The Evaluator, after considering each side’s positions, will provide an analysis or a list of questions that focus on the possible weaknesses, and to explore the perceived strengths. This may also serve as an opportunity for the parties to stipulate to facts that are not in dispute. The Evaluator at each stage will give the parties an opportunity to discuss settlement. The Evaluator may shift his/her role to that of a neutral Mediator, to assist the parties in exploring settlement options, if requested to do so. The Evaluator can assist the parties in focusing on the areas for discovery, too. Finally, if resolution is not achieved, the Evaluator can follow up with the parties to see if there are future opportunities to explore settlement.
•ENE gives parties and counsel “their day in court” – that is, having an experienced, well-regarded neutral give an objective view of the positions that they have taken in a dispute.
•ENE helps the parties facilitate their discussions – without being perceived as being weak, or not having confidence in their case
•The obvious: the parties and their counsel get an objective view of their case from a neutral person with expertise.
•ENE helps the parties focus on their strengths and weaknesses
•ENE can help where there is a party or a lawyer who over-plays his/her case
•ENE can help an attorney convince his/her own client see weaknesses, especially if counsel believes (rightly or wrongly) that merely suggesting settlement, or pointing out weaknesses in a case will be perceived by the client to be a lack of confidence
•ENE, by narrowing issues, can assist in streamlining discovery and motion practice, thereby reducing the costs of litigating a case
When can you use ENE?
To be most effective, ENE requires that there have been an exchange of sufficient information so that the real issues (factual and legal) can be explored and targeted. If used at an early stage, the Evaluator can help the parties exchange information or target the few depositions that are truly needed, to ensure that everyone – including the Evaluator – has sufficient information on hand to analyze the disputes properly.
How do you choose an Evaluator?
An Evaluator should be a competent and experienced attorney, with an expertise in the substantive issues in dispute. The Evaluator should be trained in ADR, including evaluation and mediation techniques.
Parties should not expect their judge to be an Evaluator, as the court dockets simply are too crowded to permit the time and attention that ENE requires.
What qualities do you want in an Evaluator?*
*For complete article, see pdf below.