Early Neutral Evaluation (ENE) is a form of Alternative Dispute Resolution (ADR) that offers an alternative way for parties to resolve their disputes other than through the more traditional methods of litigation or arbitration. ENE is generally cheaper, faster and more flexible than taking the dispute through court or arbitration. ENE can be used on its own as a stand-alone process or as part of a series of dispute resolutions processes including other ADR methods, such as mediation and arbitration.
ENE was pioneered in the US during the latter part of the 1980s but has not been particularly popular in the English courts in the past. However, ENE is becoming increasingly popular for parties that do not wish to resort to litigation. Not only do the courts encourage its use, it is now expressly covered in the Civil Procedure Rules and is offered in the following courts:
- Chancery Division
- Commercial Court
- Technology and Construction Court
The ENE process involves an independent evaluator who is neutral to the case and gives the parties an overall assessment or evaluation of the issues including the merits of each of their cases. The evaluator is generally a lawyer (or even judge) or expert in the relevant field. The evaluator can give an experienced view on the strengths of the evidence that has been presented. ENEs can also be used to explore any issues in the case including questions that are:
- Legal
- Evidential
- Factual
- Technical
The process is generally not binding and "without prejudice" and so anything said during the proceedings cannot generally be used at a later date by the other party. However, the evaluator will generally take a more active role than a mediator would. All evidence and arguments are heard by the parties and lawyers and no ex parte communication is permissible meaning that everyone is aware of all the issues.
Suitable cases for ENE
ENE is generally used at the start of process to resolve a dispute, although it can be used at any point. Once the evaluator gives their decision, the parties can then agree to further negotiations with a view to hopefully settling the dispute. The parties would need to draft an agreement that would usually follow with an application for a court order.
Advantages of ENE
There are various advantages to using ENE where there is a dispute including:
- It is generally faster than the more traditional ADR methods
- It will be less stressful, perplexing and worrying compared to court litigation
- The parties will receive an evaluation of the merits of the case before they incur significant costs from court proceedings
- It can lead to a quick resolution and even in cases where this does not occur it can save time and costs in future trials by the issues in dispute being clarified and narrowed
- It allows the parties much more time to discuss their issues than will be possible in a busy court listing
- Its informal nature in front of lawyers may be beneficial to unrepresented parties who do not have legal advice
- It can clarify the issues that are in dispute
- It can be tailored to meet the needs of the parties and the individual case
- The process is confidential and so there cannot be any publicity (unless agreed between the parties).
- The timings of the meeting can be fixed to suit the parties and their lawyers
- It can enhance communication between the parties in relation to the dispute and supporting evidence
- It can provide an assessment of the merits of the case by a neutral third party
- It can be a useful reality check for clients and lawyers and help manage client expectations
- It can identify and clarify the exact issues in dispute
- The evaluator can give an objective view of facts and arguments and the value of the case
- An early ENE can help the client and their lawyer decide whether or not they should proceed with the matter considering how likely they are to be successful
- The evaluator can identify the issues that are uncertain and determine how important they are
- If it is performed later in the process it can highlight any gaps in your evidence and that of your opponent
- It can determine which are your strongest arguments as well as those of your opponent
- It can determine the likely settlement options
- It can also assist in negotiations about the settlement since it can encourage both parties to be realistic about their positions
Contact our Dispute Resolution Lawyers London, UK
Lewis Nedas Law specialise in resolving disputes peacefully and amicably. We help businesses overcome their differences away from court – saving time and expensive litigation. What is needed are creative solutions, business experience and the ability to negotiate, mediate and arbitrate.
At Lewis Nedas Law, you can rely on us to do a proper job at reasonable cost. We have the experience, but we do not have City of London overheads or steep hourly rates. Above all, we want to understand your commercial objectives, and will do our best to achieve them. We work closely with exceptional Counsel as appropriate.
We are aware that legal costs are a burden, and we are keen to keep our charges to as low a level as can reasonably be achieved. We will guide you as to the most effective ways of enabling us to give you the best service we can, whilst also keeping our fees down.
You can rely on Lewis Nedas to tell you if your case has problems which make it desirable to negotiate a settlement with your opponents.
For further information or to speak to one of our top business dispute resolution solicitors, please telephone us on 020 3811 4646, complete our online enquiry form, or contact Jeffrey Lewis.
This article is intended to be no more than a general guide and does not comprise legal advice. You are strongly advised to take legal advice if you are involved in a commercial transaction.
