The source of this report is the book, Early Neutral Evaluation, Wayne D. Brazil (Chicago, ABA Publishing, 2012). Early Neutral Evaluation, ENE, is a customized ADR process to encourage early settlement and to avoid unfocused and unneeded discovery, unproductive motions, and thus wasted time, expense and frustration. While there are variations of ENE across the country, the book is based on the original and most developed model of ENE that evolved from the United States District Court for the Northern District of California. The prime features of ENE in this court are that it is free, nonbinding and confidential.
Neutral Evaluator: The evaluator must be an experienced lawyer or retired judge with deep expertise in the subject matter litigation, have training and experience as a mediator and training in the role of an ENE evaluator.
Precession Conference & written ENE Statements: The evaluator leads the conference, usually by phone, where lead counsel must attend and clients are encouraged to attend. The process is explained, questions are answered and homework assigned in the form of written ENE statements. The statements are exchanged about one week in advance of the evaluation session. These statements are not filed and cannot be disclosed to anyone outside the ENE process.
ENE Session: The session is facilitated by the neutral evaluator, is confidential, not recorded and is attended by the parties and attorneys. The process of the session is as follows: 1. Opening presentation by evaluator. 2. Substantial presentations are made by each side by the attorneys and sometimes by the parties. No rules of evidence apply and no examination or cross-examination of the lawyers or parties is allowed. No interruptions are allowed at this time. Each side explains their respective position, contested issues, what they want and arguments supporting same. 3. Responsive substantive presentations are given by each side after the initial presentations are made. 4. The evaluator poses questions to probe and clarify. 5. The evaluator identifies common interests and areas of agreement, contested issues and non-essential matters. 6. The evaluator privately drafts an evaluation. 7. The parties decide to hear the evaluation at this time or wait and explore prospects for settlement and use the evaluator as a mediator. 8. After presenting the evaluation, the evaluator helps the parties identify barriers to reaching agreement. If no agreement is reached the evaluator can assist each side to focus on productive essential discovery. Like a mediator, the evaluator has no power to impose an agreement or force the parties to proceed in any specific manner, but can suggest ways to more efficiently follow the road to litigation or settlement.
Unrealistic Expectations: Lawyers and parties tend to be overly optimistic about their chances of a good outcome. Social science research has demonstrated that humans have partisan perceptions of the merits of their case and err in evaluating their own case and are even worst at evaluation the other party’s case. ENE serves as an important reality check.
Assessment of ENE Participants: About 80% of lawyer and client participants report positive benefits from ENE. The purpose of ENE is not to replace established procedures, but encourage early case evaluation and enable participants to make better informed decisions on how to proceed to early settlement or litigation.
Buy the book: This report is only a brief summary of one ENE process. If interested, I strongly suggest acquiring the book from the ABA and reading it carefully.