The pros and cons of Early Neutral Evaluation

Since the turn of the century, there has been increasing traction for alternative forms of dispute resolution to be an integral part of the Civil Justice System in England and Wales. Whilst conciliation and mediation were the introducers to the then known Alternate Dispute Resolution (ADR) offerings, the collaborative process was added as a further DR string in 2004. Lesser known is Early Neutral Evaluation (ENE) which has become increasingly popular in recent years.

The real need for dispute resolution has been widely publicised as being the way of the future. Indeed, the Family Justice Review in 2010 chaired by David Norgrove proposed radical reform of the existing system and made recommendations for a coherent process for dispute resolution. The report highlighted the need to assist families and children following separation and family breakdown and the ability to reach agreement within divorce and financial arrangement outside the court process.

More recently focus has moved to debate how much family justice service can and should be “privatised”.  Of note is that there is a move from the Courts overseeing private law with the noted exceptions of threat of harm or abuse, or legal complexity which has a public interest. The President of the Family Division has openly acknowledged the need to develop privatised services such as arbitration, showing the extent to which it is supported.

While there is still a long way to go to break down the silos between the different dispute resolution strands and away from the default of the court process, the known benefits of dispute resolution are growing, and non-more so in the area of Early Neutral Evaluation.

At the recent Dispute Resolution Conference, these issues were discussed in detail by Duncan Brooks, Tristan Harvey and Morgan Sirikanda of QEB. Here’s a brief look at the issues their presentation brought to light.

What is Early Neutral Evaluation?

An evaluator is appointed and will hear both parties’ competing positions.  It is available for financial claims (sometimes referred to as Private FDRs), property disputes and children matters. An early neutral evaluation of the likely outcome were matters litigated in court, is then shared. Like FDRs the indication is just that, indicative and non-binding. It allows both parties to share their respective positions fully who will then have an early neutral solution presented to them.

Early Neutral Evaluation in child arrangements are on the rise with private FDRs being now commonplace for financial remedy cases.

The benefits of Early Neutral Evaluation

ENEs take place outside of a formal court setting and at a location and time agreeable to the parties. They are appropriate to both pre- and post-issue of Form A and within arbitration. Clients decide on the route to Early Neutral Evaluation and what documents/disclosure is needed to get there. In receiving an early neutral indication, matters are heard and often resolved earlier and can save significant costs.

The disadvantages of Early Neutral Evaluation

Early Neutral Evaluation does not come without some disadvantages. It adds an extra layer of cost to those proceedings which do ultimately go to court or to arbitration. For those cases where it is unlikely that a final position will not be reached without a court hearing, query any advantage an Early Neutral Evaluation may bring.  For those cases where only a day in court will do, are we delaying the inevitable?

Early Neutral Evaluation within dispute resolution

While Early Neutral Evaluation can form part of the arbitration process, its alternative and non-binding without prejudice methodology is often why it is a precursor to arbitration.

Within arbitration, both parties appoint a mutually agreed arbitrator who will make a binding decision, which can be in relation to a single issue or an entire dispute. The Institute of Family Law Arbitrators (IFLA) rules provide a default procedure which is similar to the court procedure but more streamlined. Nonetheless, the parties can agree a different procedure which would bind the arbitrator on the basis this is shared and agreed before the appointment. The default position is that the disclosure process is agreed, parties give evidence, make submissions and a written award (or determination if Children) follows.

What can be arbitrated ?

• Financial remedy proceedings
• ToLATA claims that don’t need a court order to enforce
• Private law children

What can’t be arbitrated ?

• Status of a relationship
• Insolvency
• Third-party involvement, unless by agreement
• Non-English law
• Children’s cases such as international relocation, public law, life-saving treatment cases, abduction, party lacking capacity, or where the child is the party

Alongside arbitration, Early Neutral Evaluation can benefit both mediation and the collaborative process. It is often used to break impasse and the chosen dispute resolution process from breaking down. An evaluator will sit in on a 5-way or round table meeting.

Early neutral evaluation offers a strong platform where competing positions can be discussed in an open and client focused way, but also within the perimeters of a legal framework. The process complements and supports existing dispute resolution processes or can be used as a standalone process to avoid litigation.

This article was written for Resolution and was published in issue 203 of The Review. 

This content is correct at time of publication