Introduction
The purpose of this element is to provide additional detail in relation to important forms of
ADR:
(a) Early neutral evaluation;
(b) Conciliation; and
(c) Expert determination.
Mediation and arbitration, also very common forms of ADR, are each covered by their
own element.
, Early neutral evaluation
An independent and neutral evaluator, often a QC or a retired judge, meets with the
parties early on in the dispute to give a non-binding and confidential assessment of the
dispute. As the name suggests this is usually most effective if attempted during the early
stages of a case and before significant costs have been incurred, but it can be attempted
at any stage.
The opinion of a mutually respected neutral, such as a retired judge or a QC, may assist
future negotiations. It can assist the parties obtain a realistic appraisal of their cases and
potentially break deadlocked bargaining positions. The Commercial Court specifically
encourages parties to consider ENE.
There is nothing to stop one party, acting alone, from asking for an ENE, but this is rare:
usually both parties are involved, and it seems unlikely an evaluation will carry much
persuasive weight with a party who was not involved in arranging the evaluation.
A judge can provide an ENE in relation to a dispute before the court if asked to do so –
CPR 3.1(2)(m).
The purpose of this element is to provide additional detail in relation to important forms of
ADR:
(a) Early neutral evaluation;
(b) Conciliation; and
(c) Expert determination.
Mediation and arbitration, also very common forms of ADR, are each covered by their
own element.
, Early neutral evaluation
An independent and neutral evaluator, often a QC or a retired judge, meets with the
parties early on in the dispute to give a non-binding and confidential assessment of the
dispute. As the name suggests this is usually most effective if attempted during the early
stages of a case and before significant costs have been incurred, but it can be attempted
at any stage.
The opinion of a mutually respected neutral, such as a retired judge or a QC, may assist
future negotiations. It can assist the parties obtain a realistic appraisal of their cases and
potentially break deadlocked bargaining positions. The Commercial Court specifically
encourages parties to consider ENE.
There is nothing to stop one party, acting alone, from asking for an ENE, but this is rare:
usually both parties are involved, and it seems unlikely an evaluation will carry much
persuasive weight with a party who was not involved in arranging the evaluation.
A judge can provide an ENE in relation to a dispute before the court if asked to do so –
CPR 3.1(2)(m).
