What is Early Neutral Evaluation (ENE)?
You both agree it would be helpful to ask (or instruct) a neutral person to tell you (in person/Zoom or in writing) what might happen if the court was asked to make a decision on your case.
It can be creatively used to give an overview of what the law is in a particular area. The neutral person is usually a senior barrister, QC, solicitor or ex-judge.
You can use ENE when:
• you are creating or have created a modern family (anyone who isn’t in a heteronormative relationship);
• you aren’t married or in a civil partnership and you need to sort out your share in a property you or one of you owned. This is covered by the Trust of Land (Appointment of Trustees) Act and is devilishly complicated. It’s also prohibitively expensive to go to court about; or
• you are married or in a civil partnership and one of you received an inheritance during the relationship and you can’t agree what to do now.
Could this work for me?
It’s ideal in the following circumstances:
1. you have a legally complex case;
2. your case is factually different and doesn’t sit well with case law;
3. your lawyers interpret the law differently to each other;
4. the law is unsettled or open to interpretation;
5. you are in the middle of court proceedings and your FDR hearing has been postponed;
6. you are in mediation or the collaborative process and want a third party view of your case so you can continue, or maybe even early on when views are polarised.
• Speed: you can easily sort out an ENE to get on with considering your case.
• You receive chapter and verse what the law is at the time you ask it and it’s applied to your case.
• It’s neutral so it’s a pretty accurate prediction of what a court might do if asked.
• It can be carried out in writing or in person.
• You choose your ENE on the basis of expertise and experience.
• Cost: you pay your ENE depending on the time spent (unless you can fix the fee).
• It’s not legally binding — you may spend money and be no, or not very, further forward.
• Voluntary: so if one of you says no you can’t get something jointly. Otherwise, consider instructing someone yourself (although this is usually just getting counsel’s opinion and likely to be positional).
• Neither of you would be able to use this professional to represent you as your personal lawyer or go to arbitration or court to represent you.
How do I prepare?
1. Gather as much information as possible to help the early neutral evaluator.
2. Be ready to be questioned a bit about things, individually or together.
3. Be as open as possible.
What other non-court options could this be used with?
• hybrid mediation;
• collaborative law;
• child-inclusive mediation;
• round table; or
• before using apps or other computer-based drafting tools.