Businessman standing in front of the choise

If you unreasonably refuse to consider a way of resolving a dispute without litigating (Alternative Dispute Resolution (ADR)) the courts have said many times, you run a serious risk of being hit with a legal costs penalty, even if you win your a case! This was firmly stated in a recent case[1].

Well known ADR methods of course include, without prejudice negotiating, round table meeting, issue arbitration and of course mediation.

Another alternative gaining traction is Early Neutral Evaluation (ENE).

ENE involves the parties appointing an independent and impartial evaluator to give the parties an assessment ‘warts and all’ of the merits or otherwise of each case.

The objective is to encourage the parties armed with realistic and objective views on the strength and weakness of their respective cases to negotiate practically.

ENE is usually without prejudice and is a voluntary non-binding agreed process and can deal with all the issues, just the evidence, just the law or any combination of these.

Usefully, the evaluator can be invited to suggest ways in which they think relative to the perceived merit of each side’s case the parties issues might settle.

ENE is particularly useful:

  • If the parties have reached stand off on technical or legal parts of the dispute
  • The parties positions are wildly polarised
  • If a party has an entirely subjective (usually very unrealistic) view of or advice on, the merits of their case
  • Though there are many issues several may be capable of being narrowed or reduced
  • If the parties really do not want to spend a day sparring in mediation.

Experience shows the process to be:

  • Very good for concentrating minds
  • Very good for reducing the breadth of the argument
  • Inclined to give unrealistic lawyers a reality check
  • Highlighting of weaknesses
  • Concentrates minds on the key aspects of the case.

The parties plainly need to work together to summarise their cases and define clearly what the process is intended to evaluate, narrow or recommend. Engagement by both parties is essential and so the process to be cost effective does need a significant level of reasoned cooperation. Evaluators are often retired judges or senior QCs and expensive. Clear instructions from both parties will mitigate expense. Costs will typically be similar to mediation.

What are your thoughts on progressing resolution this way? Comment below to let us know.

For more information, email

[1] PGF iiSA v OMFS Company 1 Ltd 2013 EWCA Civ 1288

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.