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Neutral Evaluation is a process where parties in a dispute may ask a senior, respected litigation lawyer who practices in the subject matter of their dispute to provide a neutral evaluation of some or all of the issues in dispute between them.
The process is non-binding, and is aimed at obtaining the view of a person with decades of legal experience in dealing with similar issues. It provides an opportunity to learn from someone neutral, who has no connection to the dispute, what the result might be if the matter proceeds to a trial or arbitration. It is not a legal opinion.
The process is set up to address the needs which the parties jointly identify, and legal counsel may wish to meet with the neutral evaluator in advance, to discuss the process, the nature of the dispute and the issues to be addressed. The point of the process is to give the parties to a dispute the joint view of the neutral evaluator. It is therefore not available to one side of a dispute, and must be requested by both parties jointly.
All statements made are without prejudice and non-binding, and nothing said during a neutral evaluation can be used later to file affidavits or on cross-examination at some other point in a court-based process. No record is kept of the Neutral Evaluation proceeding, unlike an Arbitration, where a court reporter may be present if the parties request one.
A neutral evaluation will most often proceed in a manner similar to a motion in court, where legal counsel for the parties will prepare and present materials and supporting documents in advance, and attend at a pre-arranged time with the neutral evaluator to make submissions. In cases where they mutually agree, it is also possible to give evidence (not under oath) or to call witnesses, although this is not the norm.
The process can be used at any time in a dispute that is already before the courts or about to proceed in that direction, to obtain an independent assessment of the strengths and weaknesses of each party’s case. It tends to be most useful at an early stage, however, before the courts are heavily involved in the dispute, to allow parties and their counsel to consider the risks and expenses of protracted litigation with the benefit of an independent view.
The senior litigation practitioners who comprise the panel of Alternatives to Court are an excellent resource to engage in such a neutral evaluation process, as they have decades of experience appearing and arguing similar cases, and are thus able to provide the independent views that can assist parties in determining how to proceed. Where desired, following a neutral evaluation, parties can be referred to another member of the panel for Mediation, if they are unable to resolve the dispute on their own after hearing the views of the neutral evaluator.
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