Early Neutral Evaluation (ENE) occurs where parties disagreement seek from a neutral third-party evaluator a non-binding opinion on what a court would decide were the matter to proceed to litigation or arbitration. The parties will usually select an individual with specialised, industry specific knowledge to deliver an opinion on the parties’ legal positions and the weight of their evidence.
When should recourse be made to Early Neutral Evaluation?
Early Neutral Evaluation is another form of Alternative Dispute Resolution (ADR), and carries the same benefits of avoiding the high costs of litigation and unwanted publicity. In terms of confidentiality, as ENE is commonly used to determine more specific points of contention there is less evidence required to be shared between the parties.
If settlement is achievable, but the parties disagree on certain points, ENE is a means of reaching consensus or concession and reaching a final settlement.
ENE is also available in the course of court proceedings, with a judge taking the place of the evaluator. As a judge may lack the specialist knowledge of an ENE evaluator, it is preferable to have recourse out of court and with an evaluator agreed upon by both parties. Even if the process is only used to settle part of a claim, it saves both parties time and costs in presenting evidence for evaluation before a full court hearing.
At the conclusion of proceedings, the independent evaluator will provide either an oral or written opinion on the position of the parties. It should be noted that the opinion given by the independent evaluator is not binding upon either party, nor is it binding on a judge in parallel court proceedings.
What participation do the parties have in the Early Neutral Evaluation process?
Parties to an ENE process can agree on levels of due process, including oral hearings before the independent evaluator. Ordinarily, ENE is conducted by written statements and submission of documentary evidence.
Should a contractual provision be made for Early Neutral Evaluation?
It is uncommon for ENE to be included in contractual agreements, as opposed to arbitration and mediation. Where ENE agreements are created, they are usually in anticipation of an actual, rather than potential dispute, and will contain confidentiality agreements to protect evidence provided in the course of or following proceedings. The costs of the ENE process will also be agreed between the parties beforehand.
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As mentioned above, an ENE agreement, if reachable, can safeguard against unnecessary litigation accompanied by costs and unwanted publicity.
Lewis Nedas Law has over 35 years of corporate litigation experience with both domestic and international clients in a broad range of matters, including ADR methods as a means of reaching out-of-court settlement. For expert advice from our Dispute Resolution Solicitors, please call us on 020 7387 2032 or complete our online enquiry form.