Lucinda Connell, Senior Solicitor at Major Family Law, the North East’s Top Divorce and Family Law Specialists, comments in the North East times:
It has been long accepted that, particularly within the context of family disputes involving children, an adversarial and litigious approach is rarely the best approach to resolving the dispute.
Under current rules, anyone seeking court intervention in a matter pertaining to children must first attend a meeting with a professional mediator to investigate whether it is appropriate and practicable for the issue to be resolved by way of mediation
Other types of dispute resolution which avoid the court process already exist and continue to evolve to better address the needs of those using them and the children who are affected by the agreements reached. In July of this year, the newest of these methods was successfully used for the first time.
Early Neutral Evaluation (ENE) is a technique which involves the parties employing a senior lawyer or appropriate expert to evaluate the likely outcome of the case by considering the strengths and weaknesses of the parties’ arguments and providing a decision to assist the parties in reaching an agreement together.
In the case in question, the parties had already started court proceedings when they agreed to ENE. It was a crucial feature that both agreed to be bound by the determination of the evaluator and so the court proceedings were put on hold pending the outcome of the ENE.
Under the process, the parties agree what the issues are which the evaluator is to consider and set these out in their joint letter of instruction, in which they include all relevant documents and evidence. The evaluator has the ability to hear arguments from both parties directly to assist in reaching a decision, and the outcome of the ENE can then be incorporated into a legally binding court order. It is expected that the parties will share the cost of undergoing the process.
Like other dispute resolution methods, the ENE process is flexible and allows the parties to retain control on both outcome and costs. It is a swift and discreet route to reaching a solution as well as being more economical than pursuing a court application.
ENEs have been in operation in Minnesota, USA for some time with a reportedly high success rate: almost ¾ of all ENE cases achieve a full or partial settlement.
It is important to acknowledge that this is not some new magic wand for resolving family conflict whilst circumventing the court process. ENE is not appropriate to all circumstances. For instance, settlement is not likely if the parties are already polarized and if an adverse opinion from an evaluator is likely to be ignored. In order for the ENE to have a chance of succeeding, the parties must be committed to solving problems rather than abrogating them to a judicial officer. Equally, if the case is beyond the early stages, it is unlikely that this process will work, not least because the parties are likely to be entrenched in their respective positions.
However, it seems that the potential benefits of invoking this process at an early stage far outweigh failing to consider it. Along with early case management, early neutral evaluations are proving to be an effective settlement tool that result in earlier settlements with less rancour and fewer fees and costs. As such they can help a family come through the divorce process with as little financial, and is it hoped as little emotional, damage as possible.
The process itself is in its early stages in this country, but its addition to the growing armoury of dispute resolution tools will surely be welcomed.
Lucinda Connell is a Senior Solicitor at Major Family Law, the Divorce and Family Law Specialists, Ponteland, Northumberland, NE20 9SU. T: 01661 82 45 82 www.majorfamilylaw.co.uk Twitter@majorfamilylaw