An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually a respected judge or attorney, concerning the strength of their cases. The primary goal of a neutral evaluation is to get the parties to focus on the strength and weaknesses of their case and their opponent’s case early in the litigation process in order to avoid unnecessary pre-trial expenses.
The ENE is a voluntarily presentation of the parties cases to the neutral as they would do in an arbitration on the agreed issues but in an informal process. The neutral renders an advisory non-binding decision that is essentially a prediction of the outcome the neutral reasonably would expect a judge to render in court. This objective evaluation by a knowledgeable outsider can sometimes move parties away from unrealistic positions, or at least provide them with more realistic insight into their cases’ strengths and weaknesses.
The rules of evidence will not apply. The goal is to use an abbreviated format. The evaluator will determine in consultation with the parties the method of evaluation either by written submissions, by oral presentation, or by a combination of both. If there is an oral presentation, it is usually done in the presence of the parties. There will be no formal examination or cross-examination of parties. The evaluator manages the length of any oral presentations.
The evaluator may ask questions and summarize the submissions and presentations made by the parties. The parties are encouraged to ask clarifying questions of each other. During the course of this process, the parties may come closer in their evaluations and be able to negotiate a settlement. The parties and neutral may agree after receipt of the evaluation to have the neutral now assist the parties in the role of their mediator to further facilitate the negotiations.