Early Neutral Evaluation in Family Law

Early Neutral Evaluation (ENE) is the process whereby both the husband and wife (or a de facto couple) in conflict over any issue or issues arising out of their marital breakdown can refer that issue or issues to an independent, neutral evaluator. The Evaluator (Family Law specialist) will then provide to both parties an Early Neutral Evaluation of the likely result if the matter were litigated in the Family Court.

ENE is an excellent opportunity for two parties and/or their lawyers to refer jointly the particular marital issue or issues in conflict to a properly trained and qualified Evaluator (neutral and independent). This can be done at the very earliest opportunity and can achieve, at minimal cost and delay, an expert evaluation of the most likely outcome if the matter is heard and determined in the Family Court. The Evaluator does not act as lawyer for either party. He or she remains at all times independent and neutral and offers his evaluation of the likely outcome.

Alternative Dispute Resolution

We all know how expensive litigation can be. Indeed, even negotiation can be extremely expensive. We all have a professional duty to try and help our clients to resolve their matters in the best possible way. That duty includes the duty to make our clients aware of alternate means of dispute resolution, eg: Mediation. Not all cases are suitable for Mediation. There are of course many means of dispute resolution, including:

- Negotiation

- Mediation

- Arbitration

- Litigation

- Capitulation

- Early Neutral Evaluation (ENE)

Early Neutral Evaluation (ENE) is another means of dispute resolution. It is not designed to replace any of the above processes but rather, to be a further alternative. Some of the features of ENE include:

(a) The parties can (but don't have to) attend together;

(b) It may be that either or both of the parties have already sought legal advice. The two lawyers might decide that either before or after negotiation and/or mediation, it may be appropriate to try and resolve the dispute by referring both parties to an Early Neutral Evaluator (a legal biopsy) before incurring very substantial costs and generating unwanted conflict which often results from negotiation and failed Round Table Conferences;

(c) Many times during Mediation, the Mediator can feel tempted to offer legal advice. The Mediator of course cannot do that. Not uncommonly, either or both of the parties will ask the Mediator, for legal advice. Again, the Mediator must refrain. Unlike Mediation, which empowers the parties to decide their own outcome, Early Neutral Evaluation unburdens those parties who do not want that responsibility and who prefer to have someone else resolve the conflict by making a decision for them and without having to go all the way through the extremely expensive, traumatic, conflictual, long and risky route which litigation entails;

(d) The difference, of course, between Arbitration and Early Neutral Evaluation (ENE) is that in Arbitration, the parties agree to be bound by the decision of the Arbitrator, whereas in ENE, the Evaluator simply provides an evaluation/indication of a likely result if the parties decide to refer the matter ultimately to the Family Court (ie: the ultimate Arbitration);

(e) Early Neutral Evaluation also offers the Evaluator (Family Law specialist) an early opportunity to have contact with both parties whereas a lawyer or barrister is limited to his or her own client only, and accordingly, can offer advice based on that limited opportunity. The evaluation process is not so limited.

(f) The ENE process should, at the outset, set the parameters for the Evaluation, ie: in terms of time, information, documentation and cost. That is usually not a difficult process. In that regard, it is akin to Mediation. Further, the parties and the Evaluator can agree on other parameters, eg:

(i) simply a most likely outcome;

(ii) possible alternate outcomes/quantum;

(iii) further alternate dispute resolution systems and an outline of those processes;

(iv) possible outcomes in terms of costs.

Clients need to be aware of the possibility to settle matters by Early Neutral Evaluation (ENE). Jones Mitchell's principal, Warwick Jones, and the firm's in-house Counsel, The Honourable Steven Strauss Q.C., are each separately available as Evaluators and each are happy to talk to you and answer any queries or discuss any aspects of Early Neutral Evaluation.

2003 Warwick Jones
All Rights Reserved

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