Early Neutral Evaluation: The Definitive Guide

Early Neutral Evaluation is an alternative dispute resolution option that is worth considering when you have reached the conclusion that sadly your relationship is at an end.

When a relationship ends there will inevitably be issues that need to be resolved and we believe it is important to have choice as to how you do this. For example you may need to work through how you will parent your children, resolve your housing or other financial issues, or if you were cohabiting how you deal with any jointly owned property.

Early Neutral Evaluation is certainly something to consider to see if you can find common ground on these and other difficult issues. What is clear is that there is no one size fits all when it comes to resolving issues in family law.

Our expert Hawkins Family Law team can help you find the best way forward and can talk to you about all forms of alternative dispute resolution. Contact a member of our team to discuss your options today.

Early Neutral Evaluation (ENE) is a flexible, confidential, and non-biased method of alternative dispute resolution. The main purpose is to identify early on what the issues are and whether they can be resolved. Obviously if so then this can save time and cost to say nothing of reducing stress.

ENE works at early stages (well before you consider going to court), and it involves working with an independent and impartial evaluator who will consider the issues and then provide a neutral preliminary view of the likely outcome. ENE can be particularly beneficial when the facilitator is either a retired Judge or senior family law solicitor.

The experience that such a facilitator can bring to the conflict at an early stage can if the parties are willing to listen – even if it is not quite what they want to hear really aid resolution.

Want to know more about your ADR options? See our guide to Alternative Dispute Resolution here.

Unlike mediation, the role of the ENE facilitator is to provide a sharp focus on the issues in hand and give their opinion on what a Court might say. This can result in one party feeling like they are the “winner” which may lead to negative feelings between the parties. Mediators do not provide advice so the forum can feel less confrontational.

Your ENE specialist will consider the issues and then provide an indication as to a likely outcome. This indication is not a final and binding decision – just an indication based on years of specialist experience. The rationale is that the neutral and realistic insight into the outcome of the issues can be a valuable tool for the parties to be realistic about their respective positions which in turn can facilitate agreement being reached, thereby reducing acrimony and cost.

Our advice would be that you choose a specialist senior family lawyer – either a part time Judge, retired Judge or senior family law solicitor or barrister, as these individuals will be best placed to provide the objective view that you are looking for. ENE evaluators can and usually are appointed privately.

Our family law solicitors are experienced in producing rounded outcomes for our clients through Early Neutral Evaluations and other ADR options. Get in contact to find the best evaluator for you.

The main benefit of the Early Neutral Evaluation process is that it is something you can do together to get an early indication – provided you both have an open mind and are not entrenched in your own views then it can be hugely effective.

The success of an ENE greatly depends on ensuring that everyone is on board, comfortable, and in agreement with the process. How to use ENE:

● Appointment of the evaluator – Appointing the expert is key and it needs to be someone that both parties are comfortable with as this will hopefully mean that their opinion will be taken seriously by you both

● Choosing the ENE time, date, and location – Both parties choose a time and place for their Early Neutral Evaluation to occur. A whole day should be set aside for ENE, and the time and location should be mutually convenient for both parties. Often ENEs are done in a barrister’s chambers or a solicitor’s office, but they may also be done online over video conferencing platforms

● ENE preparation – Before the proceedings it is sensible to decide what information is going to be provided to the facilitator. If it is a financial matter full and frank disclosure will be needed. If it is an issue of another kind then you might decide that each of you will provide a written statement of your viewpoint

● ENE presentation – On the day of the Early Neutral Evaluation, each of you will be able to orally express their point of view of the case, present the issues that are important to you, and express the outcome you hope to achieve from the proceedings. This means everyone present is aware of each persons position

● Evaluator’s opinion and decision – The final step to the ENE process will be when the evaluator uses their family law expertise and understanding of the case to provide an opinion on each issue in dispute. They may suggest areas where you can negotiate and compromise, and they will provide possible outcomes of litigation should you not be able to resolve your issues

The assessment given by an ENE evaluator will be neutral, non-binding, and confidential. This means that any evidence or admissions brought up during the proceedings will be completely hidden from any the court proceedings and will not be admissible in evidence at a trial – creating a safe space for discussions and negotiations to take place and be explored.

Unless an agreement is reached, neither party will be held to the discussions or the indication provided by the evaluator. If an agreement is reached, then it can of course be drafted into a binding court order or agreement.

After the evaluator has given their assessment of your issues, that will be the end of their role. Remember that the indication is still only a prediction of what could happen if the case went to trial. With Early Neutral Evaluation, what happens next solely rests with the people involved and the legal teams who advise them. They can either accept the indication or not.

Early Neutral Evaluation is designed to be a quick process. The evaluation itself may be completed as quickly as a single day, but the evaluator will need time to consider all the papers and this will inevitably take time.

This really depends on who you instruct as the facilitator and what their charging structure is. If you can reach agreement though it will significantly reduce the costs in comparison to litigation.

Each evaluator will set their own fees, but it’s common for the disputing parties to spilt this fee and pay it equally.

Get in touch with a member of our team for expert advice and insights into up-to-date evaluator fees and ENE costs.

Early Neutral Evaluation is best used at the early stages of a dispute as it can provide valuable insight into the possible outcomes of your case should it go to trial.

It is especially appropriate in cases where the parties hold significantly different views. ENE may also be employed if there is a deadlocked issue that no one can agree on.

Although ENE is commonly used in the commercial arena, it is also often used to resolve private disputes. In family law cases, Early Neutral Evaluation can be incredibly beneficial when it comes to:

● Child support
● Child arrangements including where a child should live and how often it should see the other parent
● Financial issues on divorce
● Property issues for cohabiting couples

The main advantage is you can get an early indication of what a court might order. The disadvantage is that one party may vehemently disagree with the opinion given.

If you are considering divorce or are undergoing difficult conversations surrounding child arrangements or financial matters, Early Neutral Evaluation may be an option to consider.

If you are unsure if ENE is right for you and your family, please contact one of our specialist ADR lawyers. Our dedicated and experienced team will work with you and provides expert guidance and support every step of the way.

At Hawkins Family Law, we understand that no one size fits all, and we are able to offer arbitration, collaborative law, arbitration, hybrid mediation and resolution together as well as and roundtable meetings and assistance and advice on all family law issues. Click here to meet our team of dispute resolution solicitors, and explore our blog for more family law information and guidance.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.