ENE, Meeny, Miny, Moe …

If your mother told you to pick the very best one, you would be wise to consider Early Neutral Evaluation when selecting an ADR alternative.

ENE is a wonderfully powerful process that is, inexplicably, under-used. It can quickly bring an end to a dispute by allowing the parties have their say and receive substantive and rewarding feedback. That feedback is designed to help the parties re-evaluate their positions and move towards resolution.

As the ADR Times noted, “common characteristics of the neutral evaluation include:

·      Confidential: The evaluation of the case between the neutral and the parties will be confidential.  The neutral will not share the discussions that take place within the evaluation with the judge or anyone else apart from the parties.

·      Neutral: The process will be neutral. The evaluator, or neutral, will approach the parties' dispute without bias. Neither party should have sway over the neutral, and the neutral should not take sides, but merely present the strengths and weaknesses of each case.

·      Discussion: The parties and the neutral will usually meet to discuss the case or meet to discuss the eN, the case. This discussion will usually include the neutral sharing their thoughts on the merits of the case and the parties further discussing their case and possibly discussing settlement if that is an option.

·      Non-Binding: The evaluator is not allowed to decide the case or force the parties to agree or follow the evaluator's decision. The process exists only to provide the parties with a chance to hear about the potential outcome of their case, reevaluate their positions, or discuss a settlement.

·      Collaborative: Once the neutral provides their evaluation of the case, the parties can collaborate and decide whether a settlement may be acceptable. The parties may be more willing to work together after they have a better grasp on their case.”

It seems that, rather than engage in ENE, many counsel will ask a court for an early mediation in the hopes of resolving a case without having to incur the cost of discovery. Often times, this is a mistake because the parties don’t have enough information to engage in meaningful discussions. But in an ENE, the parties are free to present their cases virtually however they want, with the information they have in hand, and, in return, receive the evaluation of a skilled neutral. That evaluation can move the parties far closer to settlement than a premature mediation.

Next time you’re thinking about a quick mediation, think about ENE instead. You just might get better results for your client.

For more on ENE, please click here.

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Do's & Don'ts in Mediation

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