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Early Neutral Evaluation

What it is, who and how we can help

Early Neutral Evaluation (“ENE”) is a method of alternative dispute resolution where the parties invite a neutral third party to consider the particular circumstances of their cases and express a view as to how they think a court would be likely to deal with those circumstances. Often the third party will be an experienced barrister who is well-versed in knowing how the court is likely to deal with similar cases.

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In financial remedy cases this is often done by way of a private FDR, essentially mirroring the court based negotiation hearing (known as a Financial Dispute Resolution hearing) but done on a private basis. ENE usually refers to disputes about children but the process is essentially the same. The advantage of having a private FDR/ ENE is that the parties can arrange it to take place at a convenient time and location and select the identity of the neutral third party. The chosen evaluator will have considerably more time to prepare and is likely to be able to dedicate greater time to the parties on the day than a Judge would.

However, the downside is that the adjudicator cannot impose a solution on the parties (it is important to note that this would be the same at a court based FDR.) Therefore, whilst the success rate is extremely high, there are cases that will then need to progress, either via court proceedings or arbitration.

At a private FDR or ENE, the adjudicator takes the role of the judge. He or she will listen to each party set out their case and listen to what they think the outcome should be. After considering both parties’ positions and reviewing the relevant document, he or she will deliver a reasoned opinion on what the outcome should be. The parties will then retire from the hearing room and will enter into negotiations to see if they can resolve the case based upon the opinion they have just heard. These hearings are highly effective.

We have vast experience of conducting private FDRs and ENEs. We are able to guide you through the process and make recommendations of a suitable tribunal for your particular case.

FAQs

Speed, cost and flexibility are some of the benefits. However, a key benefit is that the purpose of ENE/ private FDR is to help the parties to reach an agreement together. Often parties find it more palatable to reach a solution that they can both live with together rather than having an outcome imposed upon them by a court. The autonomy of reaching a decision is often empowering.

Confidentiality – the process is confidential and can also be arranged to take place at a discreet location. This can be an important factor if the press may be interested in a particular case.

No. The evaluator/ judge cannot impose an outcome upon the parties but can only guide them towards reaching a decision together.

In the event that it is possible to reach an agreement on the day, or shortly thereafter, then the parties respective lawyers will be in a position to draw up an order reflecting the terms of the agreement that can then be submitted to the court to be approved by a judge. Once approved, that agreement would have the status of an enforceable court order.

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