The goals of Early Neutral Evaluation (ENE) are to:
enhance direct communication between the parties about their claims and supporting evidence,
provide an assessment of the merits of the case by a neutral expert,
provide a “reality check” for clients and lawyers,
identify and clarify the central issues in dispute,
assist with discovery or with an informal exchange of key information, and
facilitate settlement discussions, when requested by the parties.
ENE aims to position the case for early resolution by settlement or trial. It may serve as a cost-effective substitute for formal discovery and pretrial motions. Although settlement is not the major goal of ENE, the process can lead to settlement.
FICM’s Neutrals appointing manager appoints an ENE evaluator with expertise in the substantive legal area of the lawsuit, who is available and has no apparent conflict of interest. The parties may object to the evaluator if they perceive a conflict of interest.
All evaluators on the FICM’s panel have the following qualifications:
admission to the practice of law for at least 15 years
experience with civil litigation in court
expertise in the substantive law of the case
The following individuals are required to attend in person:
clients with settlement authority and knowledge of the facts
the lead trial attorney for each party
insurers of parties, if their agreement would be necessary to achieve a settlement
Requests to permit attendance by phone rather than in person, which will be granted only under extraordinary circumstances. Clients are strongly encouraged to participate actively in the ENE session.
Communications made in connection with an ENE session ordinarily may not be disclosed to the assigned judge or to anyone else not involved in the litigation, unless otherwise agreed.
Counsel exchange and submit written statements to the evaluator at least 10 days before the ENE session.
All civil cases in which the parties are represented by counsel are eligible if the court has an available evaluator with the appropriate subject matter expertise. Cases with the following characteristics may be particularly appropriate:
counsel or the parties are far apart on their view of the law and/or value of the case
the case involves technical or specialized subject matter — and it is important to have a neutral with expertise in that subject case planning assistance would be useful communication across party lines (about merits or procedure) could be improved equitable relief is sought — if parties, with the aid of a neutral expert, might agree on the terms of an injunction or consent decree.