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Early neutral evaluation is a technique of alternate dispute resolution (ADR). As the popularity of mediation and arbitration as ADR techniques has grown in recent years, early neutral
evaluation (ENE) has also grown in popularity and frequency of use.
Utah Code. Ann. ¤ 78-31b-2(7) provides a concise definition of ENE. "Early neutral evaluation means a confidential meeting with a neutral expert to identify the issues in a dispute,
explore settlement, and assess the merits of the claims." Despite the fact that ENE is specifically recognized and defined in Utah's Alternative Dispute Resolution Act, it seems to
be little known and infrequently used in Utah.
ENE, also known as neutral evaluation and sometimes simply called case evaluation, can occur in many different forms. In general, ENE is exactly what it says it is, a process in which a
third party neutral examines the evidence in the case, listens to the parties' positions, and then gives the parties his or her evaluation of the case. In one court-annexed early neutral
evaluation program, the goals of the program are listed as: (1) to enhance communication between the parties about their claims and evidence, (2) to provide an assessment of the merits of
the case by a neutral expert, (3) to provide a "reality check" for clients and lawyers, (4) to identify and clarify central issues in dispute, (5) to assist with discovery and
motion planning or with an informal exchange of key information, and (6) to facilitate settlement discussions, especially when requested by the parties.
Typically, the parties choose an experienced attorney with expertise in the subject matter of the case as their evaluator. In order for the evaluation to be useful, it is essential that
the parties have confidence in the judgments and opinions of the evaluator. The evaluator hosts a meeting of the clients and counsel in which each side presents its evidence and arguments
informally. The evaluator then tries to identify areas of agreement, clarifies and focuses issues and encourages parties to reach stipulations insofar as that is possible.
After the meeting, the evaluator writes an evaluation in private, including an estimate of the likelihood of liability, the dollar range of damages and an assessment of the strengths and
weaknesses of each party's case. The evaluator provides reasoning to support these assessments.
Depending on the procedures that the parties have agreed upon, the evaluator can then submit the written evaluation to the parties and discuss it with them or the parties can postpone
receiving the evaluation to engage in settlement discussions in which the evaluator can take on the role of a mediator. Obviously, there are many possible variations on these themes. A
neutral evaluation can be an extraordinarily flexible process. The parties, with the help of the evaluator, can design the process so that it provides the maximum benefit to them.
One of the main advantages of ENE is that it can provide a reality check for lawyers and parties relatively early in the case. They can get good neutral feedback about their case before
they have spent a lot of money on attorneys' fees. In some cases, trying this technique too early will not work because the parties have not gathered sufficient information. Even in those
cases, however, ENE may help to focus the parties on the issues that really matter and help them to plan their discovery.
ENE seems to be especially beneficial in complicated and unusual cases. Here again, a skilled evaluator can help the participants focus on the real issues, walk through the problems in
their cases, and as one commentator said "tear the veils from their eyes step by step." Obviously, ENE also presents the advantage of complete privacy and quick resolution. In a
business context, these advantages alone can be substantial enough to persuade parties to try the process.
My primary experience with ENE has been in the family law context. One of the primary problems in representing some clients in divorces is their persistent but unfounded belief that the
goal of a divorce is to determine which party is the better person. Divorcing parties often have difficulty in accepting their attorneys' advice that the court in a divorce attempts to
dissolve their financial partnership, provide for support and make determinations about the best interests of children, not to decide which spouse caused the divorce. ENE can provide a
means to reinforce their attorneys' counsel by allowing the parties to hear from an objective third party that their attorneys are in fact focusing on the issues that a judge would focus
on. The parties may then be prepared to consider settlement, taking into account the evaluator's opinions as to the likely outcome of their case.
For attorneys who believe their role is to act as problem solvers, not just as vigorous advocates for their client's position, ENE is another tool for resolving disputes without years of
costly and frustrating litigation.
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