Today, I’ll continue my series on the Alternatives in Alternative Dispute Resolution that I began earlier this summer after facilitating a workshop on this issue In July for the West Virginia State Bar. In September, I’ll be joining the Virginia Mediation Network to facilitate the workshop for that fabulous group of mediators. Today’s process is more common in Canada than in the areas where I practice, but Early Neutral Evaluation may save the parties a great deal of anguish, time and expense.
Definition and Components:
In Neutral Evaluation, the parties select a neutral third party to hear presentations by their counsel and provide a non-binding evaluation. Magistrate Judge Wayne Brazil, (Ret.) pioneered this method of ADR where the neutral evaluates the issues, strengths, and weaknesses of each position, and renders an opinion as a probable outcome.
A facilitator with subject matter expertise offers an opinion as to the outcome of the matter in a process that is usually conducted jointly and not in caucus.
Steps or stages:
The parties schedule a meeting once they have selected a neutral evaluator with subject-matter experience capable of talking with the parties without escalating the conflict. The neutral reviews the parties’ pre-meeting memoranda and may also include depositions or statements under oath before the first meeting. Once counsel argues their cases, they respond to questions from the facilitator. After the meeting, the parties may decide to request the opinion of the evaluator. In some situations, the neutral may then move into a role as a mediator.
Allows for neutral opinion, even early in a case, regarding complicated issues, difficult evidentiary issues, or hard to prove damages.
Motivates counsel to concentrate on the case early in the litigation.
Parties avoid many adversarial elements of litigation, essential when the parties have continuing relationships.
Non-binding. The parties do not risk losing if they don’t agree with the option.
Informal. No procedural or evidentiary restrictions.
Usually cheaper than litigation. Maybe less expensive than mediation conducted later in the lawsuit.
Can help adjust expectations.
Neutral evaluation can be used before other dispute resolution processes.
Often is duplicative of mediation or settlement conferences, creating more significant obstacles to getting to trial.
Few procedural safeguards prevent coercion or intimidation.
Can be used to flush out the opposing parties’ case when a party engages in process with no intention of settlement.
As a confidential process, it will not produce precedent or address systemic issues.
Based on the mistaken assumption that the neutral can predict an outcome.
Can make the parties less self-sufficient.
Neutral Evaluation may be used in most any civil case and is particularly helpful with technical or scientific issues when the neutral has expertise in the area. It is also beneficial to address litigation with few issues and parties who have unrealistic expectations. Less effective in matters when parties have continuing relationships and when developing conflict resolution skills would benefit the parties.
For more information:
Wayne Brazil, Early Neutral Evaluation (2012)
Our office can provide Neutral Evaluation in a variety of civil cases in Virginia, West Virginia and the District of Columbia. Contact me to learn more!