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:
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.