Early Neutral Evaluation

ENE is one of the most underutilized tools in the dispute resolution toolkit. While it’s not as well-known as mediation or arbitration, it can be incredibly effective in the right situations—especially when parties are struggling to see their case objectively or need guidance before investing heavily in litigation. I’ve used ENE to help parties recalibrate expectations, assess legal risk, and even settle cases early—before positions harden and costs pile up.

Let me walk you through what ENE is, how it works, and why it might be the right process for your dispute.

What Is Early Neutral Evaluation?

Early Neutral Evaluation (ENE) is a confidential, non-binding process in which a neutral—someone like me—is asked to review a case and provide a straightforward evaluation of its strengths, weaknesses, and likely outcome if it were to go to trial.

Typically, ENE takes place shortly after a case has been filed in court, though it can also happen pre-filing if the parties are trying to resolve a matter early. Unlike mediation, where the goal is to facilitate a negotiated settlement, or arbitration, where a binding decision is rendered, the purpose of ENE is evaluation—to provide a candid, third-party opinion that can help the parties better understand the realities of their case.

This evaluation is grounded in my experience: decades as a litigator, years as a neutral, and an in-depth understanding of how judges, juries, and legal principles play out in real-life disputes. I don’t sugarcoat the truth—but I also don’t advocate for either side. My job is to call it as I see it, and to do so with fairness, respect, and clarity.

How the ENE Process Works

The ENE process is relatively simple and efficient, which makes it ideal for early-stage resolution.

1. Referral or Agreement to Participate

ENE can be ordered by a court—federal courts in particular have integrated ENE into their ADR programs—or it can be initiated by agreement of the parties. Whether mandated or voluntary, ENE requires the parties to commit to transparency and good faith participation.

2. Information Exchange and Submissions

Each party prepares a confidential case summary or position statement, often accompanied by key exhibits. These submissions outline the facts, legal theories, and damages or defenses at issue. In some cases, the parties choose to share their submissions with each other. In others, they remain confidential to me.

The goal here is not discovery, but clarity. I don’t need a full trial brief—I need to understand the heart of the case, the evidence that supports it, and how each party views their path to success.

3. Evaluation Session

Depending on the case and the parties’ preference, the evaluation may take place in person, virtually, or even on paper. Sometimes we convene for a single meeting—other times it’s a written evaluation followed by optional discussions.

During the session, I may:

• Ask clarifying questions

• Point out evidentiary gaps or legal hurdles

• Identify areas of agreement and disagreement

• Provide insight into how a judge or jury is likely to view the facts

• Offer a reasoned assessment of likely outcomes on liability, damages, or both

This evaluation is not binding. No decisions are made. No orders are issued. But what I do provide is something that parties and lawyers often desperately need: an outside, experienced, and objective view of the road ahead.

4. Post-Evaluation Options

After the evaluation is delivered, parties often reassess their positions. Sometimes, this leads directly to negotiation or even settlement. In other cases, it helps guide litigation strategy—narrowing issues, prioritizing discovery, or even rethinking claims or defenses.

Occasionally, parties invite me to assist with facilitated negotiation after the evaluation. I’m happy to do so, though only if all parties agree.

How ENE Differs from Mediation

Purpose
• ENE: To evaluate the legal and factual merits of the case early in the process.
• Mediation: To help the parties reach a voluntary and mutually acceptable settlement.

Neutral’s Role
• ENE: Acts as an evaluator—provides a candid, non-binding opinion on strengths, weaknesses, and likely outcomes.
• Mediation: Acts as a facilitator—guides discussion, helps identify interests, and supports negotiations without giving an opinion (unless using an evaluative approach).

Outcome
• ENE: A non-binding assessment intended to help parties better understand their position.
• Mediation: A negotiated agreement, if the parties choose to settle.

Timing
• ENE: Typically conducted early in the case, often shortly after filing or even pre-suit.
• Mediation: Can happen at any stage—before filing, during discovery, on the eve of trial, or even post-verdict.

Process Focus
• ENE: Legal analysis and objective assessment of the case’s likely trajectory.
• Mediation: Exploration of party interests, communication barriers, and creative settlement options.

When ENE Is Most Useful

ENE is not for every dispute, but it shines in several scenarios:

• Complex legal or factual issues: When parties need help understanding how a judge or jury might view the case.

• High emotion, low clarity: When personal conflict clouds legal analysis, ENE brings objectivity.

• Disparity in case assessment: When one side values the case far higher or lower than the other.

• Pre-mediation preparation: ENE can help parties calibrate their positions before entering mediation.

• Federal litigation: Especially in districts where ENE is part of court-annexed ADR programs.

I’ve also found ENE helpful in business and employment cases where ongoing relationships matter. Sometimes, people need to see what resolution might look like—not just legally, but practically—before they can make decisions.

My Role as Evaluator

When I conduct an ENE, I bring my full background as a business litigator and neutral to bear. I understand how cases are built, how judges think, and how juries react. I’ve seen strong cases falter due to one overlooked piece of evidence. I’ve seen weak cases settle for high dollars because the plaintiff made a compelling witness. That kind of perspective is hard to gain from within the walls of your own legal team.

As evaluator, I am:

• Neutral: I don’t advocate. I assess.

• Experienced: I’ve litigated and tried complex cases myself.

• Candid: I say what needs to be said, even when it’s difficult.

• Respectful: I understand what it takes to litigate a case and the pressure attorneys face.

• Solution-oriented: I help parties take what they’ve learned and put it to use—whether in negotiation or litigation planning.

ENE isn’t about who’s right and who’s wrong. It’s about helping everyone see the case clearly—before time, money, and emotions deepen the trench.

Let’s Talk

If you’re involved in a dispute—whether as counsel or party—and you’re looking for a fast, focused, and informed perspective on your case, Early Neutral Evaluation may be the right tool. I’m happy to explain the process in more detail or discuss whether ENE could benefit your matter.

In the right case, a well-timed evaluation can save months of litigation, thousands in fees, and years of stress. And sometimes, all it takes is one clear voice to show everyone the road ahead.

Let’s find clarity. Let’s move forward.