Early Neutral Evaluation

One or more counsel would benefit from the “evaluation” of a mutually respected neutral with significant experience in the type of litigation at issue. The role of the neutral, while similar to the “fact finder,” is more global in nature. Rather than focusing upon a specific threshold issue, the neutral evaluator scans the liability and damage issues in the case and plays the role of a “devil’s advocate” to both sides. This early neutral evaluation can be particularly helpful if one of the attorneys in the litigation is not particularly experienced in the type of dispute at issue. Experienced counsel often find significant value in this type of evaluation when litigating the case against inexperienced counsel.

Can be helpful to narrow the issues in dispute and set the stage for a later mediation. Some mediators may recommend this process to break an impasse that occurs during the course of mediation.

The scope of confidentiality that attaches to the process and the neutral’s evaluation is decided by the parties.

Indications for consideration:

  • The parties evaluate their respective cases (either on the issue of damages or liability) very differently
  • The parties mutually agree on a qualified neutral in the field whose opinion will be respected by both parties
  • One or more counsel is not particularly experienced in the type of litigation involved

  • One or more of the parties is pro se and could benefit from an attorney’s evaluation of their claims or defenses (in such cases the evaluator could be requested to service pro bono or at a significantly reduced rate)
  • One or more of the parties fails to fully appreciate the risks involved in the litigation
  • One or more of the parties could benefit from an expert’s insights on the issues that will be significant in the ongoing litigation (thereby potentially streamlining and focusing the litigation and discovery plan)
  • One or more of the parties appear determined to “over-litigate” the case
  • One or more of the attorneys appears to need assistance in client control

Timing

At the outset of litigation, and before significant discovery has been undertaken, where the litigation might be streamlined by an evaluation of the case by a mutually respected evaluator. The Evaluator is different than the mediator selected by the parties at the Case Management Conference. A mediator can often help the parties select a mutually acceptable Evaluator, implement agreed upon ground rules, and facilitate the voluntary exchange of information and the timely performance of the Evaluator’s task.

Often helpful in setting the stage for a subsequent mediation.