Do you want to be right, or do you want to be happy? Early Neutral Evaluation

This is aimed at all Parties engaged in litigation but more particularly, Help4LiPs, Litigants in person. Why?

I hear of too many stories where litigants in person have had complete mental breakdowns and worse, suicide, faced with a long uphill journey to have their cases heard and crippled by a complex system of steps to be taken to get to trial, which is in itself combative and contentious by its very nature.

Legal practitioners, academics, and the judiciary should be doing all that we can to help volatile and vulnerable people in their endeavours for justice and if there is a short-cut to a long and arduous court timetable, and lengthy trial, then it should not only be explored, but it should be pro-actively encouraged. I have never heard a Judge so far suggest, or indeed an opponent take up my suggestion for an early neutral evaluation, outside of mediation or arbitration, or general talk of settlement negotiations.

Those who have an unfettered focus upon seeking justice, and become consumed and obsessed in their pilgrimage, want to be right. They just don’t want to be right; they seek official and authoritative approval from a judicial body that their prevails have not been in vain. Moreover that those they are fighting are wrong, and that there is an open and public admission of wrongdoing against them. They distrust lawyers. They distrust their opponents. The World is perceptively against them, and minds and ideas run amock with theories of conspiracy.

Even a recent article published in the media this week gave the impression that all litigants in person were barking mad with an invitation to laugh at their misfortune and the lengths they took to correct the same. I commented that it was one of the saddest things I ever read. It was sad that those particular people were in such a hole that they could not just compromise, or settle, or just walk away and move on with their lives and do something different. It was sad that their opponents did not ever take a conciliatory position in some cases.

Put another way: Are you going to court to get justice, or are you going to court to get your dispute resolved?

Is your perception of justice, that the court must agree with what you always knew to be right, or else they are wrong and you have not achieved justice, or are you prepared to listen to an independent judge (conspiracies and conflicts of interest aside)?

ENE: Early Neutral Evaluation is discussed frequently in the realms of family dispute resolution in family courts relating to finance. It is by all accounts hugely successful for a Judge who sits separately from a Judge who would hear the case at full trial, considers issues between the Parties; considers the figures, and after some questioning and reasoning, indicates what might happen in terms of a financial percentage split, if he/she were judging the matter. The entire exercise is for the Parties to hear an independent Judge evaluate objectively and without a financial interest in the matter, the strengths and weaknesses, and an indication of how it might be Judged. It is a sobering experience. It is a humbling experience. More cases settle at that stage than not, saving huge costs, and emotional and psychological harm to each of the Parties because…there is closure (provided the Parties accept the wisdom of that particular judge).

It is little known that such an option is available in civil courts and within the case management powers of a Judge at r3.1(2)(m):

‘Except where these Rules provide otherwise, the court may…(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neural Evaluation with the aim of helping the parties settle the case’.

Once a claim is brought, and a defence filed, a Costs and Case Management Conference is normally set by the Courts at which the Parties are invited to agree on directions, or directions are otherwise ordered. It is all very well that civil courts can stay proceedings to allow the Parties to explore the possibility of settlement, and rightly so. To a litigant in person, where structure is lacking as to how exploration of settlement might look, an ENE could be ordered whereby a separate Judge without any interest in the Parties, or any conflict of interest being declared, can look fresh-faced and independently at all of the issues between the Parties, the value of the claim, and can give an indication of what might happen if the matter went to Court.

Indeed, at any stage in the proceedings, an application could be made seeking an ENE, and the Court could make such a direction. It will save time and expense. It will help narrow the issues between the Parties, and it will allow the Parties a dry-run, and some straight-talking for a Judge to make comment as to the strength and weaknesses of issues and indicate how the case might go.

An ENE decision is not binding upon the Parties. It can take place independently of court proceedings. The Judge who makes the decision plays no further part in the court proceedings.

It is the writer’s view that ENE is not being proactively asserted or suggested in the civil courts, and perhaps if it was, lives could be saved, and litigants in person may just find closure in the exercise and save much time and expense. Indeed, most litigants in person and legal practitioners outside of family law remits, are oblivious to such an option.

 

This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is a strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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