Posted: Monday, 1 March 2010 @ 14:42
Also known as Early Neutral Evaluation (ENE), this alternative dispute resolution (ADR) process emerged in the late 1990’s. The main difference to the other forms of dispute resolution is that any evaluation is non-binding.
So why would a non-binding evaluation be of any help? The key is that the evaluator is usually either a judge or QC, someone who is used to court trials as well as having legal expertise and experience. If a technical issue is involved they may also be chosen because of their expertise in that area. The idea is that their decision would be very persuasive and be a strong indicator of the likely outcome if the matter went to trial.
Early Neutral Evaluation can also be useful to clear a stalemate when other forms of dispute resolution are being used and it is necessary to resolve a dispute of opinion on a point of law or technical point on given facts.
The parties can agree the process for Early Neutral Evaluation, including the evaluator. Costs can be kept down by limiting the documentation and keeping to a case summary rather than preparing expensive witness statements.
Early Neutral Evaluation is encouraged in high value complex cases which would be dealt with in the High Court, particularly the Technology and Construction Court and the Commercial Court.
The disadvantages are that the process can be expensive and usually each party pays their own costs and their share of the evaluator’s fees, whatever the outcome. But it may be a worthwhile process when the costs of trial are huge and the parties want some early indication from a neutral evaluator of how the case is likely to be decided.
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
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