Early Neutral Evaluation

The expression Early Neutral Evaluation has different meanings to different practitioners.

It can include:

• a method used in mediation whereby the parties discuss the strengths and weakness of their case with an independent party (the mediator) who provides some feedback to the parties in relation to those strengths and weaknesses.
• a method whereby an independent party is appointed as an expert to produce a binding or non-binding opinion on their respective chances of success at trial which is shared with both parties.

Many mediators do not offer early neutral evaluation as it is prefaced on the person who you engage having the prerequisite skills to do so.

In technology related matters our firm clearly has that expertise.

In our view, it should only be offered when requested and if requested, it should only be given to the party requesting it in private sessions unless it has been requested by both parties.

The Courts with their increasing workloads are becoming aware of early neutral evaluation as an effective method of dispute resolution.

The following links are indicative of some programs which they are making available.

• Victorian Supreme Court Notice to the Profession 10/2009
• Magistrates' Court of Victoria Early Neutral Evaluation Pilot Programme
• Law Society of New South Wales's early neutral evaluation program

• September 8, 2011 - Our Steve White spoke at Evaluation mediation – benefits, traps and pitfalls at Kongress

• February 2008, American Bar Association Report Task Force on Improving Mediation Quality
  • The Task Force has arrived at three principal conclusions concerning analytical techniques used by mediators.
    • First, a substantial majority of lawyers who are repeat mediation users (again, in the arena of civil cases where parties are represented) favour the use of what we have described as analytical techniques.
    • Second, for those mediators who use analytical techniques, the fact that a substantial minority of lawyer mediation users and a higher percentage of mediation parties do not want mediator opinions or case analysis should caution mediators to consider the factors listed above before offering their analysis.
    • Third, a different group should undertake to study and make recommendations about quality as it pertains to using these various practice techniques. It is important that such a group consider the issue in the context of the expectations of participants with particular attention to how mediators and participants can communicate more effectively and clearly about the kinds of analytical techniques the participants expect and the types of analytical inputs a mediator is willing to provide in alignment with mediator ethics.

• On 8 September 2011, our Steve White spoke at LEADR's Kongres conference on the relevance of analytic techniques to mediation and in particular the findings of the February 2008, American Bar Association Report in its report Task Force on Improving Mediation Quality Report.
• The comments at that seminar from fellow leading mediators were:
  • Tremendous, frank commitment & level of sharing/imparting experience, knowledge and opinion
  • Very interesting to hear the extent of evaluative opinion in larger mediator practice
  • Would have liked to see more distillation of the learnings from the ABA report
  • A difficult topic which opened up a lot of questions and issues
  • Excellent and thought-provoking
  • Pertinent insights which may be personally relevant
• For the full session evaluation please click here