ALTERNATIVE DISPUTE
RESOLUTION: NON- ADJUCATIVE
OPTIONS
2ND PART
UNIT 4
Early Neutral Evaluation
A Introduction
22.01 Early neutral evaluation (ENE) is a private, non-binding assessment
and evaluation of the facts, evidence and/or the legal merits of one or
more of the issues in the case or of the case as a whole. It is usually
undertaken on behalf of the parties jointly, although in some cases it can
be undertaken at the request of one party only in relation to their own
case.. The process is without prejudice and non-binding, and the
evaluation is usually given after the evaluator has considered the
materials provided by the parties and submissions made by or on behalf
of the parties, orally or in writing. ENE tends to be most effective if
undertaken at an early stage in a dispute.
22.02 ENE differs from mediation in that mediation is essentially a
facilitative process. ENE is an advisory and evaluative process. However,
there is a close similarity between ENE and evaluative mediation. In this
book, the term ENE is used when a neutral third party is asked to evaluate
a dispute, without themselves becoming involved in any way in the
negotiations between the parties. It is this disengagement from the
negotiation process that distinguishes ENE from evaluative mediation.
22.03 ENE can take place within the court system, in which case the
evaluation is usually carried out by a judge. ENE can also take place
outside the litigation process, but parallel with it, and even before
litigation has been commenced at all.
22.04 Like mediation, it is a private and confidential process, and the
evaluator must be impartial. If the evaluator is appointed using an ADR
provider, he or she will operate under a code of conduct that may be the
,same or similar to the code of conduct that governs the conduct of
mediators.
B At what Stage Should ENE Be
Employed?
22.05 ENE is usually employed in the early stages of a dispute (hence its
name), but in fact it could be utilized at any stage. Neutral evaluation
employed at the early stages of a case can assist settlement by
mediation, and can be carried out before or even during the mediation,
and before or at any time during the process of litigation. ENE can also be
used to settle disputes that arise during an assessment of costs after the
main proceedings have been included, and the Costs Alternative Dispute
Resolution Service (CADR) offers ENE, or a non-binding paper assessment
of costs.1
C When Should ENE Be Used?
22.06 The rationale for ENE is that an unbiased evaluation of one or more
issues in the case and/or the likely outcome by a neutral party, such as a
judge or expert, will help the parties subsequently to settle the dispute by
negotiation or even mediation. It can be particularly useful where one or
more of the parties has taken an unrealistic and entrenched view of one or
more of the issues, or the case as a whole, and would benefit from an
assessment of the particular issue or the case by an independent person.
It is particularly useful if the issues depend more on analysing or applying
law, technical or specialist processes, or evidence to a given set of facts,
rather than opposing factual evidence.
22.07 The process can be useful in that it enables each party to
appreciate the strengths and weaknesses of the case and this in turn can
encourage and lead to settlement, even if the parties do not agree to
settle on the basis of the evaluation.
E Procedure
22.10 The manner in which the evaluation is conducted will be primarily
decided by the evaluator, although the evaluator will usually fix the
procedure after consultation with the parties. The process is flexible, and
the parties can tailor it to meet the needs of their case. The parties can
control the amount and form of the information that is placed before the
, evaluator, and they can identify the issues of fact or issues of law or both
that they want the evaluator to evaluate. The evaluator will usually be
instructed by both parties (although, as stated above, it is possible for one
party only to seek an evaluation of some or all of the issues in their case).
Where the evaluator is instructed by both parties, they will both agree the
terms on which he or she is instructed and the ambit of the instructions.
The parties can also agree that the evaluator should carry out his or her
own investigations independently of the parties, and make a
recommendation based on those investigations. Once appointed, the
evaluator may wish to hold a preliminary meeting with the parties to
agree the ground rules, the documentation to be provided, whether a
hearing is required, and to set time limits for each stage of the process.
22.11 The procedure usually provides for each instructing party to make
written submissions to the evaluator, together with such evidence and
supporting documents as they see fit. It is also possible to agree that each
party should present some or all of their case at an oral hearing. The
evaluator may also wish to hold a meeting with the parties (instead of or
in addition to a formal hearing) to obtain further information about the
issues in dispute.
22.12 The evaluator will evaluate the evidence (oral and/or written) and
the law bearing in mind the submissions of each party and produce a
recommendation setting out his or her assessment of the merits of the
dispute and the likely outcome of it. The recommendation may or may not
contain detailed reasons for the decision depending on the agreement
reached between the parties and the evaluator.
22.13 The evaluation is non-binding and the parties do not have to accept
it, although they can agree subsequently to settle their dispute in
accordance with the recommendations in it.
G Judicial Evaluation
22.15 ENE can be carried out by a judge, in any court, with the aim of
helping the parties to settle the case.2 The judge will consider the legal
and factual issues, evaluate the evidence and any submissions of the
parties, and issue a non-binding recommendation or evaluation. If the
parties ask a judge to express a provisional view on the whole case or
issues in it, then it is part of the judicial function for the judge to agree to
do so.3 The court can order ENE pursuant to CPR r 3.1(2)(m) even if one
party does not consent to this. CPR r 3.1(2)(m) does not seek to impose a
limitation to the effect that the court could only direct an ENE if all the
RESOLUTION: NON- ADJUCATIVE
OPTIONS
2ND PART
UNIT 4
Early Neutral Evaluation
A Introduction
22.01 Early neutral evaluation (ENE) is a private, non-binding assessment
and evaluation of the facts, evidence and/or the legal merits of one or
more of the issues in the case or of the case as a whole. It is usually
undertaken on behalf of the parties jointly, although in some cases it can
be undertaken at the request of one party only in relation to their own
case.. The process is without prejudice and non-binding, and the
evaluation is usually given after the evaluator has considered the
materials provided by the parties and submissions made by or on behalf
of the parties, orally or in writing. ENE tends to be most effective if
undertaken at an early stage in a dispute.
22.02 ENE differs from mediation in that mediation is essentially a
facilitative process. ENE is an advisory and evaluative process. However,
there is a close similarity between ENE and evaluative mediation. In this
book, the term ENE is used when a neutral third party is asked to evaluate
a dispute, without themselves becoming involved in any way in the
negotiations between the parties. It is this disengagement from the
negotiation process that distinguishes ENE from evaluative mediation.
22.03 ENE can take place within the court system, in which case the
evaluation is usually carried out by a judge. ENE can also take place
outside the litigation process, but parallel with it, and even before
litigation has been commenced at all.
22.04 Like mediation, it is a private and confidential process, and the
evaluator must be impartial. If the evaluator is appointed using an ADR
provider, he or she will operate under a code of conduct that may be the
,same or similar to the code of conduct that governs the conduct of
mediators.
B At what Stage Should ENE Be
Employed?
22.05 ENE is usually employed in the early stages of a dispute (hence its
name), but in fact it could be utilized at any stage. Neutral evaluation
employed at the early stages of a case can assist settlement by
mediation, and can be carried out before or even during the mediation,
and before or at any time during the process of litigation. ENE can also be
used to settle disputes that arise during an assessment of costs after the
main proceedings have been included, and the Costs Alternative Dispute
Resolution Service (CADR) offers ENE, or a non-binding paper assessment
of costs.1
C When Should ENE Be Used?
22.06 The rationale for ENE is that an unbiased evaluation of one or more
issues in the case and/or the likely outcome by a neutral party, such as a
judge or expert, will help the parties subsequently to settle the dispute by
negotiation or even mediation. It can be particularly useful where one or
more of the parties has taken an unrealistic and entrenched view of one or
more of the issues, or the case as a whole, and would benefit from an
assessment of the particular issue or the case by an independent person.
It is particularly useful if the issues depend more on analysing or applying
law, technical or specialist processes, or evidence to a given set of facts,
rather than opposing factual evidence.
22.07 The process can be useful in that it enables each party to
appreciate the strengths and weaknesses of the case and this in turn can
encourage and lead to settlement, even if the parties do not agree to
settle on the basis of the evaluation.
E Procedure
22.10 The manner in which the evaluation is conducted will be primarily
decided by the evaluator, although the evaluator will usually fix the
procedure after consultation with the parties. The process is flexible, and
the parties can tailor it to meet the needs of their case. The parties can
control the amount and form of the information that is placed before the
, evaluator, and they can identify the issues of fact or issues of law or both
that they want the evaluator to evaluate. The evaluator will usually be
instructed by both parties (although, as stated above, it is possible for one
party only to seek an evaluation of some or all of the issues in their case).
Where the evaluator is instructed by both parties, they will both agree the
terms on which he or she is instructed and the ambit of the instructions.
The parties can also agree that the evaluator should carry out his or her
own investigations independently of the parties, and make a
recommendation based on those investigations. Once appointed, the
evaluator may wish to hold a preliminary meeting with the parties to
agree the ground rules, the documentation to be provided, whether a
hearing is required, and to set time limits for each stage of the process.
22.11 The procedure usually provides for each instructing party to make
written submissions to the evaluator, together with such evidence and
supporting documents as they see fit. It is also possible to agree that each
party should present some or all of their case at an oral hearing. The
evaluator may also wish to hold a meeting with the parties (instead of or
in addition to a formal hearing) to obtain further information about the
issues in dispute.
22.12 The evaluator will evaluate the evidence (oral and/or written) and
the law bearing in mind the submissions of each party and produce a
recommendation setting out his or her assessment of the merits of the
dispute and the likely outcome of it. The recommendation may or may not
contain detailed reasons for the decision depending on the agreement
reached between the parties and the evaluator.
22.13 The evaluation is non-binding and the parties do not have to accept
it, although they can agree subsequently to settle their dispute in
accordance with the recommendations in it.
G Judicial Evaluation
22.15 ENE can be carried out by a judge, in any court, with the aim of
helping the parties to settle the case.2 The judge will consider the legal
and factual issues, evaluate the evidence and any submissions of the
parties, and issue a non-binding recommendation or evaluation. If the
parties ask a judge to express a provisional view on the whole case or
issues in it, then it is part of the judicial function for the judge to agree to
do so.3 The court can order ENE pursuant to CPR r 3.1(2)(m) even if one
party does not consent to this. CPR r 3.1(2)(m) does not seek to impose a
limitation to the effect that the court could only direct an ENE if all the
