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Early Neutral Evaluation Information

What is Early Neutral Evaluation (ENE)?

Early Neutral Evaluation (ENE) is a process that lets either one party in a conflict to present written and oral summaries of its case to a "neutral" person, called an "evaluator." In ENE, lawyers and their clients get to hear independent feedback on the strengths and weaknesses of their case. This helps the parties have a more realistic assessment of the potential outcome of their case if it goes to trial or provides them with better preparation for a trial.

What does » evaluation« mean?

Evaluation means forming and presentation of views on the dispute. ENE may respond to specific question, which could be relevant in the course of litigation or it can respond to the general question what is the party’s likelihood of success in litigation or arbitration proceeding.

Evaluation may define the range within which the party can expect the decision of the court, for example, monetary claim is expected to be successful in the amount between 25,000 and 35,000 EUR or it can be expressed in a form of percentage in which probability of success is likely in litigation or arbitration proceeding, for example, 60 % probability of success with the claim can be expected.

What kinds of cases are suited for ENE?

ENE is not limited to certain type of disputes and it can be used for resolving civil, criminal, commercial, employment or other disputes, but ENE is especially  good choice when:

• Lawyers or parties want an independent opinion about a case;
• Party or lawyer has an unrealistic view of the dispute;
• Party feels alienated from the formal litigation process;
• Party wants an independent opinion of its own lawyer's judgment about a case;
• Parties and lawyers are reluctant to be the first ones to raise the issue of settlement.
• There are technical or scientific questions to be worked out, like in medical malpractice cases, copyright or trademark cases, or a statute of limitations issue that could be the key factor in deciding if the case will go forward or not.

How do we select an evaluator?

According to the dispute characteristics ECDR will suggest the party appropriate neutral evaluator/s from the ECDR Panelist List, but the final decision on choosing the neutral evaluator lies with the party.

What are the qualifications of the evaluator?

The evaluator is either high-ranking former or retired judge or a lawyer or other expert with expertise in the area of law/profession your dispute involves. Detailed CVs of evaluators are available at ECDR in the process of choosing the evaluator.

In general, the neutral evaluation of disputes that have potential to be referred to court or are already being processed in court is at ECDR being performed by former Constitutional Court judges and former Supreme and Higher Court judges. Namely, the advantage of such profile of neutral evaluators is that it enables the parties to see their dispute through the eyes of a most experienced judge in the relevant field. Therefore such neutral evaluation provides the party with the most objective simulation of the court decision.

How do we prepare for ENE?

The preparation includes but is not limited to the following:

• Provide a brief statement of the facts of the case.
• State what you must prove to win the case and how do you intend to do so.
• State types of damages claimed and how much money is being asked for.
• State other possible claims in connection with the dispute.
• Describe any unusual issues that may affect the case, like discovery or evidentiary problems, related claims, third party liens, etc.
• State any legal or factual issues that if resolved early on, would reduce the scope of the dispute.
• Include copies of documents you believe the neutral evaluator should consider. (e.g. contracts, meeting minutes, reports, invoices etc.).
• List the name of witnesses that could give information with respect to the case.

In more complicated cases it is customary to have a session with the evaluator to review the facts and documentation of the case and define the questions to which ENE should give answers to.

What form does ENE take?

It can be presented orally or in writing, depending on the request of the party.

What is the timeframe for performance of ENE?

Party and neutral evaluator define the timeframe in which ENE needs to be performed.