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Early Neutral Evaluation

Assess your strengths and weaknesses to chart your course of action
Early neutral evaluation or ENE, as popularly understood, is a manner of objective evaluation of the merits of claims of one or more parties in a conflict situation. A conflict arises on account of differences in perceptions and carries a strong subjective element of the person’s own understanding of what is right and what is wrong; whose stand is justified and whose is not; what is reasonable and what is not. Answers are not always binary in character and law as applied to given facts do not yield the same results because there may not be lucidity on a point of law or which law is to be applied could itself be a matter of debate.

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Courts have evolved a system overtime of directing the parties to seek an objective assessment of the merits of the case through legal counsel of a neutral drawn from a panel who have volunteered assistance to the court. Gradually, there has gained a practice of parties approaching legally trained persons to evaluate the chances success of a given litigation on disclosure of facts and evidence or more broadly, even before a party arrives at the litigation scene to secure an objective opinion if it worthwhile to spend time and money in a litigation. In the changed scenario of parties being weaned from the arena of litigation or who may opt out of it to engage in negotiation of what might still be profitable, ENE is sought to decide on the appropriate course of action.

Far from its use only to make a choice between litigation and other forms of ADRs, it shall help the party even in mediation of what may be expected as final outcome and how to steer the conversation. Even during the course of mediation, parties may ask for evaluation in the caucus, that is, in the private conversation with the mediator, with assurance of confidentiality to the extent requested,  for the mediator’s assessment of the case to fashion the demand or adopt a particular stand. This practice at the mediation, however, is extremely limited, but ENE is a good tool in a typical situation where a neutral evaluation by an expert will go a long way to lessen the time spent in litigation.
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