ABSTRACT

Whenever we hear about Alternative Dispute Resolution, what often comes to mind are the popular mechanisms such as arbitration, mediation, conciliation, and negotiation. It is not uncommon for people to be ignorant about the other mechanisms of ADR such as the Early Neutral Evaluation (ENE). This article, therefore, seeks to provide conceptual knowledge on Early Neutral Evaluation and highlight the advantages and disadvantages of the mechanism, as well as the procedural process the ENE dispute resolution mechanism follows.

1.0. INTRODUCTION

Early Neutral Evaluation is a mechanism of the Alternative Dispute Resolution whereby an independent and impartial third party known as an evaluator gives the parties an assessment on the merits of their case. It is a combination of mediation and neutral analysis. The evaluator is often a senior solicitor, retired judge, or Queen’s Counsel (QC). It should be noted that if the evaluator is a judge, he or she cannot adjudicate the case again if it goes to trial. It will serve as a conflict of interest ousting the jurisdiction of the judge on the matter. This is so, except the parties agree otherwise. In ENE, the evaluator hears the case from both parties and evaluates it, telling them the likely outcome if it goes to trial. He or she then identifies the strengths and weaknesses of the parties in the case. Furthermore, this ADR mechanism is not as formal as litigation or arbitration and is of no binding effect.

Early Neutral Evaluation may lead to settlement of disputes if the parties decide to abide by the opinion of the evaluator on the likely outcome of the dispute. However, in some cases, it serves as an assistance to a more formal dispute resolution such as litigation or arbitration. Parties resort to ENE voluntarily as it cannot be forced unilaterally.

2.0. STEPS IN EARLY NEUTRAL EVALUATION (ENE)

After the agreement between the disputing parties to adopt the mechanism of Early Neutral Evaluation, the next step is appointing an evaluator. It goes without saying that the evaluator must be impartial and without bias. Also, this evaluator must have expertise or knowledge of the subject matter in contention. There are no specific rules as to the number of evaluators. It depends on the discretion of the parties involved in the case. After the evaluator is appointed, the parties submit written statements containing the facts and issues in the case. This gives the evaluator an understanding of what the case is about and the different point of view of the parties. After this, the parties pick a date and time for the commencement of proceedings.

On the date agreed for the commencement of proceedings, the evaluator gives an opening statement. This opening speech contains the role of the evaluator as a neutral third party and the rules governing the proceeding. After this, the parties give an oral presentation of their case and arguments. They also state the outcome they seek from the proceeding. The final stage of ENE is the evaluator’s opinion. Here, the evaluator gives his/her informed opinion on the likely outcome if the case is taken to court. Early Neutral Evaluation may end in two ways; Either the parties come to an agreement based on the evaluator’s opinion, or they proceed to take the issue to court.

3.0. ADVANTAGES AND DISADVANTAGES OF ENE

Like every other ADR mechanism, Early Neutral Evaluation has its advantages and disadvantages. One of the pros of ENE is that just like an x-ray, it provides a reality check for the parties on the risk of litigation. For example, a case where a party realises just 40k as compensation after spending 250k on the dispute, will not exist if they had resorted to ENE first. The party will not take the matter to court if they already know from the onset that it will not be worth it at the end of the day. Secondly, even if it does not result in a settlement, the employment of an ENE mechanism helps in identifying the issues. This means that it serves as a roadmap showing the parties what to expect from the dispute. Since this mechanism is not as formal as the other mechanisms, it can be faster and more cost-effective than other mechanisms. Also, Early Neutral Evaluation identifies weaknesses in case and gaps in evidence. This helps the party to adequately work on their arguments and build their case before taking it to trial or arbitration. Like every other ADR mechanism, ENE is highly confidential. The evaluator does not share the discussions that take place within the evaluation with the judges or anybody else apart from the parties involved in the case.

Despite the advantages, ENE is not without disadvantages. One of its disadvantages is that, the process is non-binding, and any party that does not agree with the evaluation can simply ignore it. Extra costs are then incurred when the case is taken to trial or arbitration making the process more expensive. Secondly, ENE is largely one-sided. The party in whose favor the evaluation is made is put in a favorable position, the effect of this is that, the favored person might then become too confident and alter his negotiation stance based on the evaluator’s opinion. and what is supposed to be settled fast and amicably might then become much more complicated as a result. Also, it is very possible for the evaluator to not hear every factual witness evidence that would have been heard at trial. Therefore, it might not be suitable and accurate when it comes to complex factual disputes.

4.0. CONCLUSION

Conclusively, it is advisable for parties to explore other mechanisms of ADR, such as Early Neutral Evaluation, when settling their disputes. However, it is important to weigh the pros and cons before delving into it.

Bibliography

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2. Victoria Harrison, “Neutral Evaluation- A Powerful and Effective Tool in Settling Disputes”, 29 March 2020, available at: https://theunilagadrsociety.wordpress.com/2020/03/29/neutral-evaluation-a-powerful-and-effective-tool-in-settling-disputes-by-victoria-harrison/ (accessed 23 December 2021).

3. ADR Times, “Early Neutral Evaluation: Encouraging Settlement and Understanding”, 15 February 2021, available at: https://www.adrtimes.com/early-neutral-evaluation/ (accessed 23 December 2021)

4. S Leydecker, A. Oddy, A. Philips, “Pros and Cons of Common ADR Processes”, 2 October 2012, available at: https://hsfnotes.com/wp-content/uploads/sites/2/2013/01/PROS-AND-CONS-OF-COMMON-ADR-PROCESSES.pdf (accessed 23 December 2021).