Early Neutral Evaluation (ENE) is an ADR process that relies heavily on the expertise of the neutral to evaluate the strength and weaknesses of the parties’ cases at the earliest stage possible. The goal of ENE typically includes a reality check for the parties to ensure that they are making a fully informed decision as to proceeding with adjudication or negotiation.
The details of the ENE process are stated in an ADR agreement tailored to the nature of the protest. As should be expected, a neutral likely needs to study the relevant documents and arguments before rendering an evaluation. This means that ENE procedures typically involve the preparation of a significant document collection as well as written position statements from the parties. Depending on the parties’ wishes and after consultation with the neutral, position statements might be exchanged between the parties, or the parties might provide only to the neutral a confidential statement to address more sensitive information. A neutral might also glean information through discussions with the parties, whether jointly or separately. At the end of the process of gathering information, the neutral formulates his or her views regarding the protest.
How an evaluation is delivered is a matter of personal style for the neutral. Written evaluations are rare, perhaps in recognition that the record on adjudication may change, or because creation of a written product serves to delay the process rather than providing an early assessment. Delivering an oral evaluation in a joint session has the advantage of promoting a sense of fairness because everyone is assured that the neutral is delivering the same message to all parties. Joint sessions have a disadvantage, however, inasmuch as the neutral may feel constrained from discussing information provided in confidence by one party or from discussing conclusions that will serve only to embolden one party to the detriment of the process. As a result, a neutral may prefer to have one-on-one discussions with the parties to discuss the case.
It is not uncommon for a more traditional mediation process to follow a preliminary ENE.