Advantages & Disadvantages of ENE
Advantages
- It provides more efficiency, being a quick process and offering less formality than arbitration or litigation.
- The process will identify the case weaknesses and gaps in evidence, hence providing a party, the opportunity to negotiate more realistically.
- It helps to narrow the issues in dispute, despite not resulting in a settlement.
- The expert gives a realistic assessment from each party’s perspective, hence, parties have a better evaluation of their respective legal position, giving them the opportunity to be better prepared to table dispute and negotiate.
- Applicable to a wide range of dispute types.
- It helps to facilitate settlement discussions.
Disadvantages
- Depending on the circumstances and complexity of the case and the ENE Agreement between the parties, the process can become lengthy and costly and moreover, the expert’s decision is non-binding
- The party having an evaluation in its favour, may become entrenched in its position, hence hindering a settlement or becoming more demanding in settlement negotiations.
- In cases where there are significant issues of fact in dispute and given the fact the expert does not have the same opportunity to hear witnesses as in other forms of dispute resolution, ENE might not be an apt solution.
- The Party not getting a favourable outcome from the ENE, may not accept the Evaluator’s decision and therefore decide to proceed with litigation.