Early Neutral Evaluation process
Early Neutral Evaluation (ENE) is a confidential and informal dispute resolution process. Parties to a dispute engage an independent, neutral evaluator to offer a non-binding assessment of the dispute's facts, evidence, and legal merits. ENE offers significant flexibility and informality, blending the benefits of a judicial settlement conference, mediation, and independent expert determination of the dispute.
ENE is designed specifically for disputes already in litigation or arbitration and is suitable for all types of disputes where the parties are committed to a prompt and cost-effective resolution. The issued evaluation is non-binding unless the parties agree otherwise; it provides them with an independent assessment of the issues at hand.
Process Overview
Starting the process
The parties need to agree to engage in ENE by signing an agreement to submit their dispute to Early Neutral Evaluation.
Appointment of an evaluator
Once the parties have agreed to use ENE, an evaluator must be appointed who is suitable, independent, and impartial.
Preliminary conference
The preliminary conference is intended to promote the efficient conduct of the process.
Submission of case
Each party will submit a written statement outlining the facts, evidence, and legal arguments.
Evaluation conference
During the evaluation conference, parties present their case and evidence in an informal setting.
Additional information
The evaluator may request further information from any party to aid their evaluation.
Evaluation
After the joint meeting, the evaluator will assess the dispute's merits and provide an evaluation. This will include a non-binding opinion on the likely outcome if the dispute were to be resolved by arbitration or litigation.
Cost of early neutral evaluation
Our focus is on delivering cost-proportionate process solutions. Find out more about the cost of early neutral evaluation.
Step 1. Starting the process
To initiate the Early Neutral Evaluation (ENE) process, the parties involved in the dispute first need to mutually agree to use this method of dispute resolution.
Once the parties have decided to pursue ENE, they must formalise their decision by signing an agreement to submit their dispute to ENE specifically. This agreement essentially sets the stage for the rest of the ENE process, establishing a commitment to engage with the ENE evaluator and abide by the process rules and guidelines.
The agreement should be clear, specific and contain the necessary details about the dispute and the process to be followed. Our registry team can provide you with a template early neutral evaluation agreement to ensure the inclusion of all necessary elements.
Step 2. Appointment of an Evaluator
Once the parties have agreed to engage in the Early Neutral Evaluation (ENE) process, they need to appoint a neutral evaluator. The evaluator is typically an expert in the field of the dispute or a legal professional. Often the evaluator will be a retired member of the judiciary.
The New Zealand Dispute Resolution Centre (NZDRC) is responsible for appointing an evaluator unless the parties involved have agreed on a specific person. This appointment is made once NZDRC receives a completed application and payment. If the parties have someone in mind, that person must meet certain criteria, and NZDRC has to agree that they are suitable, independent and impartial.
Step 3. Preliminary conference
In most cases, the evaluator will convene a preliminary conference. The purpose of this conference is to discuss timetabling and procedural matters, including what information the parties intend to submit. This proactive case management step is designed to ensure everyone knows what is going to happen and when, and to promote the efficient conduct of the process.
Step 4. Submission of case
After the preliminary conference, each party will prepare and send their case submission to the Evaluator and all other parties. This submission should include all relevant supporting documents and evidential material.
The case submission should clearly outline the nature and basis of the dispute, the factual and legal issues involved, the party’s stance on these issues, and the relief or remedy sought, including the quantum of any claim, counterclaim or crossclaim. If a contract is involved, a copy or relevant sections of it should be included. Lastly, the submission should include any statements, reports, documents, or other evidential material that the party relies on to support its contentions.
Step 5. Evaluation conference
During the evaluation conference, each party is allowed to present a summary of their case, evidence and supporting material. The conference is not bound by formal rules of evidence, and there is no cross-examination of witnesses. Instead, parties can refer to any documents or evidentiary material to support their arguments or refute others’ contentions, and the evaluator can ask clarifying questions at any time.
Upon the conclusion of each party’s case summary presentation, parties may make a closing submission in reply to others’ submissions, in reverse order to the initial presentations. The evaluator plays a crucial role in this phase, helping to clarify and focus on the issues, identifying areas of agreement and disagreement, and pinpointing further key documents or information needed. The evaluator can also assist the parties in realistically assessing litigation costs and may establish a plan for sharing additional information or conducting key discovery. The conference may conclude with the evaluator determining if a follow-up session would contribute to case development or settlement, and parties may be encouraged to enter into settlement negotiations, facilitated by the evaluator or an independent mediator.
Step 6. Additional information
During the Early Neutral Evaluation process, the evaluator has the authority to request additional information or evidential material from any party involved. Upon receiving such a request, the respective party is expected to provide the requested information to the evaluator and all other parties. The information should be provided in the manner specified by the evaluator.
Following this, any other party involved in the dispute has the right to file a submission in response to the provided information. This response submission should be filed with the evaluator and every other party.
Step 7. Evaluation
The evaluator is responsible for providing an evaluation of the disputed matters following the Evaluation Conference or receipt of any additional submissions, documents or evidentiary material requested by the evaluator from any party. This evaluation will be provided in writing, with an explanation of the reasons it is based on. The evaluation records the evaluator’s opinion about the likely outcome of the dispute if it were to be resolved in court, based on the material presented by the parties during the Early Neutral Evaluation process. This might include an assessment of liability and, where appropriate, a range of potential damages.
However, it’s important to note that this evaluation is not binding on the parties involved. Either party, after consultation with the evaluator, can also terminate the Early Neutral Evaluation process at any time. Furthermore, the evaluator holds the right to suspend or terminate the evaluation if they feel unable to provide a useful evaluation of the dispute. The Early Neutral Evaluation process concludes either when a settlement agreement regarding the dispute is signed or when the evaluator’s assessment is provided to the parties, whichever comes first.
Next steps
Got questions?
Contact our Registry team who can help you to identify the right solution to your problem.
Looking for a model clause
Access our complete guide to model clauses for all our process options.
Get in touch
Contact our team today to see how we can help