What is ENE?
Early Neutral Evaluation (ENE) is a process that may take place soon after a case has been filed in court or at times when clients/parties want just to have an overview or likeliness of what could be the outcome if the matter is carried in a court system. The case is referred to an expert, typically a retired judge, an arbitrator or an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute.
The parties either submit written comments or meet in person with the expert. The expert identifies each side's strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement instead of going through litigation. The report is a non-binding document. ENE is furthermore carried out on a “without prejudice” basis, implying that anything disclosed during the ENE process cannot be used as evidence in court without agreement.
It is important to note that unlike other forms of alternative dispute resolution, such as Arbitration or Adjudication, ENE does not result in a final decision. The evaluator neither decides legal matters nor advocates a way of resolving matters. Instead, by indicating what each party might realistically rely upon in the event of a litigation taking place, the evaluator provides a valuable incentive for an agreement to be reached.
Nevertheless, ENE is more and more being adopted by businesses in dispute, to get a practical view of the merits of their respective positions, without incurring huge expenses on litigation.