The Merits of Early Neutral Evaluation

Today’s post comes from one of our San Francisco panelists, Hon. Wayne D. Brazil (Ret.). Judge Brazil has a national and international reputation as one of the most significant innovators and leaders in the field of ADR. His book, Early Neutral Evaluation was recently published by the ABA, Dispute Resolution Section.

I am a professional mediator – and a passionate devotee of its virtues.  Mediation, however, can take many forms, depending on the individual needs of a particular dispute or its parties. In my new book, for example, I address the uses and benefits of Early Neutral Evaluation (ENE) and outline when ENE might be a better alternative for a particular dispute.

ENE aims to position the case for early resolution by settlement, dispositive motion or trial. It may serve as a cost-effective substitute for formal discovery and pretrial motions. Although settlement is not the major goal of ENE, the process can lead to settlement.

In ENE, the parties and their lawyers can be confident that they have seen every bit of evidence and heard all the arguments that has gone into the evaluator’s mind before they form their assessment of the merits.  There is no ex parte communication with the neutral before they commit their evaluation to writing. In ENE, the parties also know that the same assessment is being presented to each of them – because they hear it at the same time.  And they can be confident that the evaluative inputs they hear are rooted in the evidence and law.

Typically ENE can enhance communication between the parties about their claims and supporting evidence, provide an assessment of the merits of the case by a neutral, provide a “reality check” for clients and lawyers and identify and clarify the central issues in dispute.

Ultimately, there are significant differences between ENE and mediation, as well as between various forms of mediation – and wise counsel will attend carefully to those differences when helping their clients select the form of ADR that promises to best meet the needs that will play the most important roles in positioning their case for disposition – by agreement or otherwise.