Neutral Evaluation

What is Neutral Evaluation? Goals Process Voluntary and Confidential Submission of Written Statements The Neutral Evaluator How to Start the Neutral Evaluation Process Appropriate Cases for Neutral Evaluation Cost Different from Mediation and Arbitration

What is Neutral Evaluation? Neutral Evaluation provides the parties and their counsel in general civil cases, on a voluntary basis and in a confidential session, the opportunity to make summary presentations of their claims and defenses and receive a non-binding evaluation by an experienced neutral lawyer with subject matter expertise. Goals The goals of neutral evaluation are to: Enhance direct communication between the parties about their claims and supporting evidence Provide an assessment of the merits of the case by a neutral expert Provide a “reality check” for lawyers and their clients Identify and clarify the central issues in dispute Assist with discovery and motion planning or with an informal exchange of key information Facilitate settlement discussions, only when requested by the parties Process The evaluator, an experienced attorney with expertise in the subject matter of the case, will convene an informal meeting of clients and counsel. At the informal meeting, each side - through counsel, clients or witnesses - will present evidence and argument supporting its case without regard to Rules of Evidence and without direct or cross-examination of witnesses. The evaluator will ask questions after the initial presentations, and then each side may present a responsive presentation. Following the presentations, the evaluator will identify areas of agreement and disagreement, clarify and focus the issues, and encourage the parties to enter procedural and substantive stipulations. The evaluator will then prepare an evaluation, outside the presence of the parties, which may include an estimate, where feasible, of the likelihood of liability and the dollar range of damages, and an assessment of the relative strengths and weaknesses of each party's case. If requested by the parties, the evaluator will also facilitate settlement discussions. Voluntary and Confidential Neutral evaluation may not be ordered; it is available on a voluntary basis only. Communications made in connection with a neutral evaluation session ordinarily may not be disclosed to the assigned judge or to anyone else not involved in the litigation, unless otherwise agreed. The confidential evaluation is non-binding and is not shared with the trial judge. Submission of Written Statements Counsel exchange and submit written statements to the evaluator at least 7 days before the neutral evaluation session. These statements are not filed with the court. The Neutral Evaluator The evaluators on the court’s neutral evaluation panel were selected for their litigation experience and subject matter expertise. The parties select the evaluator for their case. How to Start the Neutral Evaluation Process The parties agree to participate in neutral evaluation by completing the form Stipulation to Participate in ADR. Upon receipt of the Stipulation, the Court or ADR Department may refer the parties to neutral evaluation (the "Neutral Evaluation Referral"). When a case is referred to neutral evaluation, counsel will complete and submit immediately to the ADR Department the required ADR forms. Counsel will then choose from the court’s neutral evaluation panel an available neutral evaluator with expertise in the substantive legal area of the lawsuit and no apparent conflict of interest. Appropriate Cases for Neutral Evaluation Cases with the following characteristics may be particularly appropriate for neutral evaluation: Counsel or the parties are far apart on their views of the law and/or value of the case; The case involves technical or specialized subject matter, and it is important to have a neutral with expertise in that subject; Communication across party lines (about merits or procedure) could be improved; Equitable relief is sought, if parties, with the aid of a neutral expert, might agree on the terms of an injunction or consent decree; and/or The parties wish to communicate with each other about the case, but are not ready specifically to discuss settlement. Cost The evaluators on the court’s neutral evaluation panel provide time for a pre-session telephone conference, preparation time, and the first three (3) hours of the session free of charge. Thereafter, the parties may be charged for additional hearing time on an hourly basis at rates established by the evaluator if the parties so consent in writing Different from Mediation and Arbitration Neutral evaluation is different from arbitration and mediation. Arbitration involves an evidentiary hearing and actual determination on the merits of a case. Neutral evaluation is less formal; counsel present their case in a narrative form. The evaluator assesses the relative strengths and weaknesses of each party’s case, based on the law and the evidence. Mediation does not involve an evidentiary hearing nor is it based solely upon the law. Instead, the goal of mediation is to resolve a case based upon the parties' respective interests and may involve the mediator learning confidential information from each party. Choosing neutral evaluation does not mean that the parties cannot later choose to mediate or arbitrate their case.