Early neutral evaluation (ENE) is a form of non-court dispute resolution (NCDR) and can be used to resolve both children and financial disputes.

ENE involves a third party (usually a senior barrister or retired judge) giving the parties their expert view of the likely outcome of the case should it proceed in court to be determined by a judge. The purpose is to encourage and facilitate settlement of some or all of the issues, with the aim of saving costs and reducing delay and stress for the parties.

The most common form of ENE in financial cases is a private financial dispute resolution hearing (private FDR), which mimics the mandatory second hearing in the in-court process.

As ENE is a bespoke offering, the parties agree who to appoint as their private judge/evaluator, the timing and location of the process and the scope of the matters for evaluation.

ENE involves a neutral third party appointed by both parties assessing the merits of the parties’ respective cases and providing an expert indication of the case’s prospects and likely range of outcomes.

These evaluations can help to narrow or resolve issues in dispute for anything from the wider question of division of assets on divorce to discrete interim issues such as how a property or business should be valued.

Although its name suggests ENEs take place early in the dispute, the parties may seek evaluations at any point up to trial, as well as before commencing proceedings.

ENE will take place at a mutually agreed venue, usually a solicitor’s office or barristers’ chambers. In the case of narrow or specifically defined disputes, they can also take place on paper only. The evaluator reviews the relevant evidence before the hearing. The parties’ barristers usually make oral submissions to the evaluator, who then assesses the merits of each party’s case and indicates what they consider a court would decide based on the evidence. The indication is non-binding and is intended to serve as a basis for negotiations and to help the parties reach an agreement.

One of the main attractions of ENE is the speed at which a dispute (or a discrete issue) can be resolved and the flexibility of the service, as the parties are not at the mercy of the court timetable, which often prolongs matters. The evaluator will also have more time to prepare for the case and be available all day to provide further assistance in negotiations if required. In contrast, at court hearings, the judge will not have had time to read much, if any, of the papers and will have limited court time during the day to assist the parties.

Non-court dispute resolution (NCDR)

It is widely recognised that court proceedings are not the most appropriate forum to resolve many family disputes, particularly matters relating to children. Various non-court processes are available, however, including ENE, mediation, arbitration and collaborative law. Parties are actively encouraged by the court to consider NCDR both at the outset (before issuing court proceedings, if deemed necessary) and to give it due consideration throughout the life of a case.

Adopting ENE as a process option qualifies as NCDR and satisfies the court’s requirements. Should ENE not prove successful, the parties can explore alternative NCDR processes or, if necessary, return to the in-court process. For more details about NCDR, please see our dedicated page here. Please also see more information relating to mediation, arbitration and collaborative law.

Stewarts’ specialist Divorce and Family team has extensive experience in early neutral evaluation and can help you understand, navigate and be supported through the process.