NEUTRAL EVALUATION- A POWERFUL AND EFFECTIVE TOOL IN SETTLING DISPUTES by Victoria Harrison

Imagine a scenario where you could see into the future, or where you had an idea of what would happen before it actually happened. You could tell the outcome of your choices before you actually made them. No, this is not a review of an episode of some TV show about clairvoyance, it’s something much better and it’s called Neutral Evaluation.

In a world fraught with all manner of uncertainties, having the advantage of professional insight could make all the difference between time-wasting loss and a timeous win. That’s the opportunity that Neutral Evaluation offers.

Even with a wide field of Alternative Disputes Resolution techniques such as arbitration, mediation, conciliation and negotiation to choose from, lawyers and their clients have increasingly turned to neutral analysis and evaluation. When conducted by experienced neutral professionals with no preconceived view of the issues, neutral evaluation is a powerful and effective tool in helping parties better understand, and even settle their dispute. This method, though not so commonly used in Nigeria in comparison with more popular forms of ADR such as mentioned above, clearly has its own benefits, and this explains its popularity in countries where it is practised. Neutral evaluation is often called a second set of eyes or a clear-eyed assessment. This is because an experienced, objective and disinterested former judge or attorney works directly with clients’ counsel to provide a candid, confidential and objective assessment or evaluation of a case or any part of the case, at any stage —before filing, summary judgment, trial or arbitration, before and upon appeal—whenever an outside view can be useful. It is also known as Early Neutral Evaluation, especially when it is done before either party has to resort to a full blown court trial. A neutral evaluation may consider such factors as process, law, decision-makers, substance or evidence issues and potential outcomes.

A neutral evaluation can be short, or extend sporadically through the life of the case. The evaluator works directly for the client, to provide a candid and confidential assessment for his/her consideration. And what’s more? It can be used to resolve a wide variety of matters ranging from family law related disputes such as divorce and child custody to commercial disputes especially those of a technical nature.

When can it be done? At any point in a case, depending on the client’s purpose. Each stage offers a possibility for a neutral evaluation to be useful: When used early, a neutral evaluation can help the client decide whether to proceed to trial at all, balancing the expense of litigation and the likelihood of success. The neutral evaluator can help with identifying the unknowns and their importance, identifying the potential legal theories and the necessary elements of each, assessing the risks, prioritizing discovery, and so on. Or the neutral can offer a private assessment of claims brought against the client and how to respond to them.

In the event that litigation has already begun, a neutral evaluator can help analyze a single issue, or all the issues, or frame a summary judgment argument. A neutral evaluator can help the client to discover possible holes in their case and can help with suggesting what the strongest points in the case are and how to make them, and other important things like opponents’ strongest arguments. Which arguments are just distractions? What are the likely settlement options?

Even after the trial, if the client wants to appeal the courts decision, a neutral evaluation can be conducted on the briefs to be submitted and often, this could include moot arguments to a panel of former appellate judges. Preferably however, it is best done before going to court as this is the whole point of Early Neutral Evaluation in the first place; to save money and to save time.

The point is that the client has complete control: firstly, because the time to be allotted for the evaluation process is specified in the agreement, and secondly, because the client determines what tasks and materials are included in the evaluation. Additionally, the process can take whatever form is useful to the client, including written evaluation and informal conversation.

In short, an evaluator provides experience, confidentiality, candor and neutrality. Furthermore, where the neutral is a former judge, neutral evaluation offers a view from the other side of the bench with deep, detailed insights on the case issues, presentation and likely outcomes. A former judge or justice brings his/her unique years of experiences to neutral evaluation. A non-judicial neutral evaluator with extensive trial experience or substantive subject-matter expertise can bring other experience to the analysis as well as a view from counsel’s perspective having represented clients in disputes. This means either way, the client gets a genuinely neutral evaluation. In many cases, the neutral(s) will have knowledge of the particular court, judge or justice and can provide valuable, particularized insight. With this advantage, Neutral analysis allows counsel and the client to plan and customize an effective approach.

A downside to neutral evaluation however, as everything must have its advantages and disadvantages, is that in some cases, when parties go through a neutral evaluation process, the neutral evaluator may come to a conclusion that clearly favors one party. That party will then refuse to compromise requiring the case to be brought before a judge, which defeats the whole purpose of seeking an alternative to litigation in the first place. Accordingly, Early Neutral Evaluation is best when both parties are willing to speak openly and consider compromises.

Fortunately, in most cases, neutral evaluation serves its purpose and the evaluation result is often then successfully used as a basis for a negotiated settlement in the dispute, sometimes with the neutral evaluators helping, and the parties mediating around the evaluation. This form of neutral evaluation, which is a combination of mediation and neutral analysis, leads to an extremely well-informed basis upon which to resolve a matter. If the parties come to a resolution at the end of the neutral evaluation processes, they can put their agreement in writing and submit it to the court for approval. When the court approves the agreement, the case ends and the agreement becomes a court order. If the parties do not come to an agreement from the evaluation, the case then moves forward in the normal legal process.

In summary, the main goal of neutral evaluation is to provide a ‘reality check’ for parties who would otherwise have spent N500 on litigation costs only to realize N100 as compensation after a harrowingly long litigation process which could easily have been avoided if they had instead opted for neutral evaluation.

In light of all these benefits, it’s little wonder neutral evaluation is fast becoming a more preferred dispute resolution mechanism in certain parts of the world. Hopefully, Nigeria would not be left trailing behind in this regard. Lawyers and parties to a dispute should consider Early Neutral Evaluation as a powerful and effective tool in analyzing, evaluating and even helping to resolve their case.