Topic 13: Early Neutral Evaluation

TAHMIDUR RAHMAN
Topic 13
EARLY NEUTRAL EVALUATION
tahmidur.rahman151@northsouth.edu University of London

TAHMIDUR RAHMAN
578 Topic 13 EARLY NEUTRAL EVALUATION
INTRODUCTION
The final non-adjudicative process that we are going to look at in detail is early
neutral evaluation. Early neutral evaluation (or ENE) is an evaluation of a case usually
in its early stages by a neutral third party. The name is therefore a good clue as to
what ENE entails! The Chancery guide (2018) describes ENE as ‘a simple concept
which involves an independent party, with relevant expertise, expressing an opinion
about a dispute or an element of it’.

TAHMIDUR RAHMAN
Topic 13 EARLY NEUTRAL EVALUATION 579
KEY CONCEPTS
This topic includes:
a critical analysis and evaluation of the process and procedure relating to early
neutral evaluation (ENE)
an evaluation of when ENE can be carried out by a judge
an analysis of the procedure that may be used in ENE.

TAHMIDUR RAHMAN
TOPIC OBJECTIVES
After completing the study of this topic you should be able to:
13.1 demonstrate awareness of the circumstances in which early neutral evaluation

(ENE) may be used
13.2 critically assess the similarities and differences between ENE and mediation
13.3 explain ENE and critically assess the extent to which it best serves or
compromises the interests of justice
13.4 apply knowledge in analysing and evaluating complex ethical problems in ENE
so as to provide soundly reasoned legal, ethical and practical solutions
13.5 demonstrate effective communication skills and an ethical, practical,

problem-solving approach in complex legal and factual scenarios in ADR.

TAHMIDUR RAHMAN
MINI LECTURE - 1

TAHMIDUR RAHMAN
ESSENTIAL READING AND RESOURCES - 1

Now that you have watched the first mini lecture, you can read more in the Essential
reading for this topic.
Blake, S., J. Browne and S. Sime A practical approach to alternative dispute

resolution. (Oxford: Oxford University Press, 2018) 5th edition. Chapter 22 Early
neutral evaluation.
All the Essential reading for this programme is provided for you. Click ‘next’ to go to
the next page and start reading.

TAHMIDUR RAHMAN
BLAKE CHAPTER 22: EARLY NEUTRAL EVALUATION
S. Blake, J. Browne and S. Sime, A practical approach to alternative dispute

resolution (Oxford University Press, 2018; 5th edition)
A What is Early Neutral Evaluation?

22.01
Early neutral evaluation (ENE) is a non-binding assessment and evaluation of the
facts, evidence and/or the legal merits of an issue in the case or of the case as a
whole. It is usually undertaken by the parties jointly, although in some cases it can be
undertaken at the request of one party only in relation to their own case. The parties
will usually appoint a neutral third party to evaluate the facts, evidence, and law in
relation to the issue or case and provide an opinion on the merits. This differs from
mediation, which is essentially a facilitative process. ENE is an advisory and evaluative
process.
22.02
As discussed in Chapter 14 there is a close similarity between this and evaluative
mediation. However, in this book the term early neutral evaluation is used when a
neutral third party is asked to evaluate a dispute, without themselves becoming
involved in any way in the negotiations between the parties. It is this disengagement
from the negotiation process that distinguishes early neutral evaluation from
evaluative mediation.
22.03
ENE can take place within the court system, in which case the evaluation is usually
carried out by a judge. ENE can also take place outside the litigation process, but
parallel with it, and even before litigation has been commenced at all.
22.04
Like mediation, it is a private and confidential process, and the evaluator must be
impartial. If the evaluator is appointed using an ADR provider, he or she will operate
under a code of conduct that may be the same or similar to the code of conduct that
governs the conduct of mediators.
B At What Stage Should It Be Employed?

22.05
ENE is usually employed in the early stages of a dispute (hence its name), but in fact it
could be utilized at any stage. Neutral evaluation employed at the early stages of a
case can assist settlement by mediation, and can be carried out before or even
during the mediation, and before or at any time during the process of litigation. ENE
can also be used to settle disputes that arise during an assessment of costs after the
main proceedings have been included, and the Costs Alternative Dispute Resolution
Service (CADR) offer ENE, or a non-binding paper assessment of costs (see
www.costs-adr.com
).
C When Should It Be Used?

22.06

TAHMIDUR RAHMAN
The rationale for ENE is that an unbiased evaluation of the case and the likely
outcome by a neutral party, such as a judge or expert, will help the parties
subsequently to settle the dispute by negotiation or even mediation. It can be
particularly useful where the parties have taken an unrealistic and entrenched view
of the claim and need a reality check and assessment of the case by an independent
person.
22.07
The process can be useful in that it enables each party to appreciate the strengths
and weaknesses of their case and this in turn can encourage and lead to settlement,
even if the parties do not agree to settle on the basis of the evaluation.
D Who Should Be Appointed to Carry Out the Evaluation?

22.08
The choice of evaluator will depend on the issues presented by the case. It may be
that an expert is required, in which case the process will be an expert evaluation.
Whether an expert is appointed to carry out the evaluation will depend on the
underlying subject-matter of the dispute and whether issues of a technical nature are
raised that require expertise to evaluate.
22.09
The parties may privately appoint a neutral. This could be a solicitor, barrister, or an
independent third party such as an expert. Alternatively they may enlist the
assistance of an ADR provider in order to help them select and appoint a suitable
evaluator. For example see CEDR’s model ENE Agreement and Guidance Notes (at
www.cedr.com
), or the Chartered Institute of Arbitrators, but there are also many other ADR
providers who offer an ENE service.
E The Procedure
22.10
The manner in which the evaluation is conducted will be primarily decided by the
evaluator in most cases, although the evaluator will usually fix the procedure after
consultation with the parties. The process is flexible and the parties can tailor it to
meet the needs of their case. The parties can control the amount and form of the
information that is placed before the evaluator, and they can identify the issues of
fact or issues of law or both that they want the evaluator to evaluate. The evaluator
will usually be instructed by both parties (although, as stated above, it is possible for
one party only to seek an evaluation of some or all of the issues in their case), and
they will agree the terms on which he or she is instructed and the ambit of the
instructions. The parties can also agree that the evaluator should carry out his or her
own investigations independently of the parties, and make a recommendation based
on those investigations. The evaluator may wish to hold a preliminary meeting with
the parties to agree the ground rules, the documentation to be provided, whether a
hearing is required, and to set time limits for each stage of the process.
22.11
Each party will usually make written submissions to the evaluator, together with such
evidence and supporting documents as they see fit. It is also possible to agree that
each party should present some or all of their case at an oral hearing. The evaluator

TAHMIDUR RAHMAN
may also wish to hold a meeting with the parties (instead of, or in addition to, a
formal hearing) to obtain further information about the issues in dispute.
22.12
The evaluator will evaluate the evidence (oral and/or written) and the law bearing in
mind the submissions of each party and produce a recommendation based on the
merits of the dispute and the likely outcome of it. The recommendation may or may
not contain detailed reasons for the decision depending on the agreement reached
between the parties and the evaluator.
22.13
The evaluation is non-binding and the parties do not have to accept it, although they
can agree subsequently to settle their dispute in accordance with the
recommendations in it.
F Neutral Fact Finding

22.14
A variation in the process is to require the evaluator simply to investigate and

evaluate the facts in dispute between the parties (but not the underlying issues of
law or quantum) and reach a decision on those facts. It can be useful to appoint an
expert to carry out a non-binding neutral fact-finding evaluation of one or more of
the technical issues in the case to assist the parties to reach a settlement.
G Judicial Evaluation
22.15
ENE can be carried out by a judge, in any court, with the aim of helping the parties to
settle the case (see CPR r 3.1(2)(m)). The judge will consider the legal and factual
issues, evaluate the evidence and any submissions of the parties, and issue a
non-binding recommendation or evaluation. If the parties ask a judge to express a
provisional view on the whole case or issues in it, then it is part of the judicial
function for the judge to agree to do so (Seals v Williams [2015] EWHC 1829 (Ch)).
This gives the parties some indication of the likely outcome at trial. Judicial
evaluation can have a strong persuasive effect on the parties, who may then adopt
the judge’s recommendations in settling the dispute. It is particularly useful if the
case raises limited areas of factual dispute. It is also useful if there is a significant
difference of opinion between the parties about the value of the claim, or where they
have differing perceptions of the strength of the claim or specific issues. An ENE
hearing, conducted by the judge, can provide the parties with guidance on the
court’s view of quantum.
Judicial evaluation in the Commercial Court

22.16
The Commercial Court may, with the agreement of the parties, in an appropriate
case, provide ENE of a dispute or of some of the issues in the case. The approval of
the judge in charge of the Commercial List must be obtained before an ENE is
undertaken. If, after discussion with counsel, it appears to the judge that ENE will aid
the resolution of the dispute, they will, with the agreement of the parties, refer the
matter to the judge in charge of the list. The judge in charge of the list will, if the state
of business in the list permits, nominate a judge to conduct the ENE. The judge

TAHMIDUR RAHMAN
conducting the ENE will then take no further part in the case, either for hearing
applications or as trial judge, unless the parties agree otherwise.
Judicial evaluation in the Technology and Construction Court

22.17
Judicial evaluation can also take place in the Technology and Construction Court and
in the Mercantile Court, although the parties must agree that a TCC Judge should
evaluate the whole case or some of the issues in it, and if they do agree, they will
usually seek an order at a Case Management Conference for an ENE to be carried out
by the Court. The judge assigned to the case may carry out the evaluation himself, or
it may be assigned to another TCC judge. The judge carrying out the evaluation will
usually carry out no further judicial role in relation to the case. Paragraph 7.5.1 of The
Technology and Construction Court Guide provides that the judge will produce a
written report with conclusions and brief reasons. Unless the parties otherwise agree,
the report will not be binding on them.
22.18
The judge will usually evaluate the case based on a summary of information provided
to him. The judge undertaking the ENE will issue directions for the preparation and
conduct of the ENE. These will usually include dates for the exchange of submissions
and documents (which may include exchange of witness statements and expert
evidence), a direction that the ENE will be conducted entirely on paper, or
alternatively the judge may direct that there be an oral hearing (with or without live
evidence being called). If an oral hearing is required, it will usually only last one day.
The judge may also require the parties to jointly instruct an expert to help him or her
reach a determination of the technical issues in the case (if expert evidence has not
already been obtained).
22.19
An example of an order providing for judicial neutral evaluation is Figure 22.1.

TAHMIDUR RAHMAN
Figure 22.1 An example of an order providing for judicial neutral evaluation
Judicial evaluation in the Chancery Division

22.20
In the Chancery Modernisation Final Review: Final Report by Lord Justice Briggs,
published in December 2013, he reports (at para 5.6), that in some chancery regional
trial centres, a form of judicial ENE takes place in the context of inheritance, contested
probate, and Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) cases.
District judges may convene a court hearing aimed specifically at exploring
settlement, with the district judge expressing a preliminary evaluation of the merits
or a range of likely outcomes at trial. He notes that this form of judicial ENE is not
recognized in any rule, practice direction, or standard procedure in the Chancery
Division at present. However, he recommends that judicial ENE would be a valuable
tool for encouraging settlement in a range of chancery cases. These
recommendations are now incorporated into the Chancery Court Guide, which
provides for judicial Early Neutral Evaluation (see paras 18.7 to 18.15). The Guide also
incorporates Chancery Financial Dispute Resolution (Ch FDR) in which the judge
facilitates negotiations and may provide the parties with an opinion about the claim
or elements of it. During Ch FDR, the judge will act both as facilitator and evaluator,

TAHMIDUR RAHMAN
although the process, like mediation and early neutral evaluation, is non-binding and
without-prejudice. See paras 18.16 to 18.18 of the Chancery Guide in relation to Ch
FDR. Including a draft order for FDR.
Judicial evaluation in the Employment Tribunal

22.21
In October 2016, the President of the Employment Tribunal issued a Protocol on

Judicial Assessment, setting out guidance for employment judges conducting a
preliminary impartial and confidential judicial assessment of the case. This takes
place at an early stage of the proceedings and it is an assessment of the strengths,
weaknesses and risks of the parties’ respective claims, with the aim of helping the
parties to settle their dispute by agreement before positions become entrenched and
costs escalate. The assessment will usually take place at the first case management
conference and may involve both a provisional assessment of liability and/or
quantum without hearing any evidence. The assessment is confidential and the
judge providing it will not hear the case at the final hearing.
H Evaluation in personal injury cases

22.22
Some ADR providers operate non-binding evaluation schemes for personal injury
cases. The evaluations may be carried out by retired district judges who will have a
great deal of experience in deciding similar cases.

TAHMIDUR RAHMAN
KEY POINTS SUMMARY
S. Blake, J. Browne and S. Sime, A practical approach to alternative dispute

resolution (Oxford University Press, 2018; 5th edition)
22.23
• ENE is useful if the parties would benefit from an independent assessment of the
merits of the case or an issue in the case.
• It can be undertaken at any stage of the case, even during mediation.
• ENE is not binding on the parties.
• It is a confidential process.
• If the ENE is carried out by a judge, they will have no further involvement in the
case.
Blake, Browne and Sime. Original materials from A practical approach to

alternative dispute resolution © copyright 2018 Oxford University Press.
By permission of Oxford University Press. All rights reserved.
Blake, Browne and Sime. Original materials from A practical approach to

alternative dispute resolution © copyright 2018 Oxford University Press.
By permission of Oxford University Press. All rights reserved.

TAHMIDUR RAHMAN

Now read the second Essential reading for this topic:
HM Courts & Tribunals Service Chancery guide. (Updated April 2018)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/71
Remember that all the Essential reading for this programme is provided for you. Click
the link to start reading.

TAHMIDUR RAHMAN
TOPIC 13 - QUICK QUIZ 1

If you feel ready, please attempt the following quiz. Don’t worry if there are some
questions you can’t answer − you can always try again later.

TAHMIDUR RAHMAN
MINI LECTURE - 2

TAHMIDUR RAHMAN
TOPIC 13 − SELF-ASSESSMENT EXERCISE 1

Attempt the following exercise. If you have understood the reading you should be
able to answer the question competently.
Feedback is available, but try to answer on your own first. Your response won’t match
the feedback exactly, but you should compare your performance with it and consider
whether you took all the relevant factors into account. Rate your performance
honestly. If you haven’t performed as well as you hoped, you may need to go over
parts of the Essential reading again.

TAHMIDUR RAHMAN
TOPIC 13 - QUICK QUIZ 2

If you feel ready, please attempt the following quiz. Don’t worry if there are some
questions you can’t answer − you can always try again later.

TAHMIDUR RAHMAN

Now read the third Essential reading for this topic:
Brazil, W.D. ‘Early neutral evaluation or mediation? When might ENE deliver more
value?’, Dispute Resolution Magazine 14 2007, pp.10−5.
the link which will take you to the Online Library database page for HeinOnline
where you can log into HeinOnline, and search for the reading.
For further assistance see the Online Library guide to Essential reading for ADR
.

TAHMIDUR RAHMAN

Now read the fourth Essential reading for this topic:
Levine, D.I. ‘Early neutral evaluation: the second phase’, Journal of Dispute
Resolution 1 1989, pp.1−57.
This article gives an account of how ENE was adopted in the federal courts of the
Northern District of California following a pilot programme. It therefore provides a
useful comparable approach in another jurisdiction to the approach that prevails in
England and Wales, where the judges can conduct an ENE as part of their case
management powers under CPR Part 3.
the link which will take you to the Online Library database page for HeinOnline
where you can log into HeinOnline, and search for the reading.
For further assistance see the Online Library guide to Essential reading for ADR
.

TAHMIDUR RAHMAN
TOPIC 13 − SELF-ASSESSMENT EXERCISE 2

Attempt the following exercise. If you have understood the reading you should be
able to answer the question competently.
Feedback is available, but try to answer on your own first. Your response won’t match
the feedback exactly, but you should compare your performance with it and consider
whether you took all the relevant factors into account. Rate your performance
honestly. If you haven’t performed as well as you hoped, you may need to go over
parts of the Essential reading again.

TAHMIDUR RAHMAN
TOPIC SUMMARY
In summary, ENE is an advisory, non-binding evaluative process that gives the parties
an opinion on the merits of the case or issue, which they can then use in whatever
way they wish. It can often form a basis for negotiating a settlement.
It is different from evaluative mediation because the neutral does not broker
negotiations between the parties.
The process is flexible, and can be designed to meet the needs of the parties and the
case; although more formal set procedures tend to apply when the ENE is being
carried out by a judge.

TAHMIDUR RAHMAN
FURTHER READING AND RESOURCES

Further reading will deepen your understanding in some areas but it is not required
in order to pass the module. You may wish to consult the reading suggested here or
others that you find, but please note that we cannot guarantee that Further reading
will be accessible to you and we do not undertake to supply it. Any Further reading
available via the Online Library is denoted using (OL).
Brazil, W.D., M.A. Kahn, J.P. Newman and J.Z. Gold ‘Early neutral evaluation: an
experimental effort to expedite dispute resolution’, Judicature 69 1985,
pp.279−85. (OL
)
Pike and Fischer, Inc. ‘Early neutral evaluation: an ADR technique whose time has
come’, FindLaw
http://corporate.findlaw.com/litigation-disputes/neutral-evaluation-an-adr-technique-whose-time-has-c
URLs given on this page were checked at the time of publication but will not be
maintained. If a link to a Further resource is no longer working, use the bibliographic
information to search for the item using a good search engine. The University of
London cannot take responsibility for pages maintained by external providers.

TAHMIDUR RAHMAN
PROGRESS LOG
We recommend that you now complete your topic progress log. This should allow
you to monitor and assess your progress and your understanding of the topic before
you move on.

TAHMIDUR RAHMAN
Topic Topic objectives How confident are you?
Completely Partially Unsure

confident confident
Topic 13: Early neutral 13.1 Demonstrate awareness of

evaluation the circumstances in which early
neutral evaluation (ENE) may be
used.
13.2 Critically assess the

similarities and differences
between ENE and mediation.
13.3 Explain ENE and critically

assess the extent to which it
best serves or compromises the
interests of justice.
13.4 Apply knowledge in

Date analysing and evaluating complex
ethical problems in ENE so as to
provide soundly reasoned legal,
ethical and practical solutions.
13.5 Demonstrate effective

communication skills and an
ethical, practical, problem-solving
approach in complex legal and
factual scenarios in ADR.

Topic 13: Early Neutral Evaluation

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TAHMIDUR RAHMAN

tahmidur.rahman151@northsouth.edu University of London

578 Topic 13 EARLY NEUTRAL EVALUATION

tahmidur.rahman151@northsouth.edu University of London