Monday, February 27, 2012

ENE - Early Neutral 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) as a form of ADR has returned. This process, popular out West, is an offshoot 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 of the merits of the case by a neutral expert in an early "reality check" for clients and lawyers. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management planning. A confidential exchange of factual information can help facilitate settlement discussions, once requested by the parties. A neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel. Following presentations, the evaluator identifies areas of agreement, clarifies and focuses 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 hopefully with the litigants better informed as to the risks, work still necessary and the monetary aspects of continuing on a track toward trial. A new publication from the ABA this year on ENE outlines the process -