Dispute Resolution Services (DRS) : DRS Processes : Neutral Evaluations
In a neutral evaluation, each party presents their facts and arguments to a neutral third party. The evaluator then provides his or her assessment of the strengths and weaknesses of the parties’ positions. The evaluator may also suggest the outcome for each issue. The parties may accept this outcome and settle the case, or they may use the evaluation as the basis for negotiating a different agreement. The evaluator’s opinion is not binding on the parties.
Presenting your case to a neutral evaluator
This presentation may be given by the parties themselves or their attorneys and may be oral or written.
Timing of neutral evaluations
A neutral evaluation may occur at any stage of the settlement process and may cover all topics or certain selected topics. Most commonly, a neutral evaluation occurs near the beginning of the process. An early evaluation resulting in settlement will save the time and money typically used in formal or informal legal discovery, as well as eliminating further negotiation and/or litigation.
Some clients and attorneys will be more comfortable with an evaluation which occurs after the information has been gathered, the law has been researched, and arguments have been made. A settlement resulting from an evaluation at this stage will avoid a possibly expensive, grueling, and risky trial.
Finally, an evaluation can occur at any time in a traditional, collaborative or mediation process when it would be helpful, such as when settlement negotiations have broken down and impasse is near.
(For those cases which are in the court process, Rule 114 of the Minnesota General Rules of Practice for the District Court provides for an “Early Neutral Evaluation”. The Rule refers to evaluations which occur later in the process of a case as a “Non-binding Advisory Opinion”.)
Topics for neutral evaluation
An evaluation may cover all topics or just certain selected ones. If settlement does not result, the neutral evaluator may help to narrow the issues, suggest guidelines for managing discovery and otherwise help to design the remainder of the legal process.
Presentation of the evaluation
Depending on the parties’ agreement, the evaluation can be oral or written. Typically in a DRS process, the evaluator will make an oral report in the presence of the parties, the mediator, and possibly the parties’ attorneys. This process allows the parties to ask questions of the evaluator right then and there. It also enables the mediator to facilitate an agreement, which includes all or some of the expert’s recommendations, or use the evaluation to help the parties come up with a different result.
Finding a neutral evaluator
Certain DRS professionals can provide neutral evaluations for financial matters, such as division of assets and/or liabilities, determination of non-marital claims, child support, spousal maintenance, and tax matters. When the financial information is complex, DRS can suggest neutral accountants or financial planners who will assist in the evaluation process.
Neutral parenting evaluations can be done in the private sector or through the court if the case has been filed. (The Court calls this process a “Social ENE (Early Neutral Evaluation)”.) Dispute Resolution Services can help our clients arrange for such an evaluation by a neutral parenting expert who is not affiliated with DRS. As an alternative, we can refer clients to a child specialist, who will provide information about their children’s specific needs.
Roles of neutral evaluation in mediation
A type of neutral evaluation may be useful in a mediation process if the parties cannot agree on one or more facts or outcomes. An evaluation can be combined with the mediation process in several different ways. One method is that the mediator can provide a non-binding settlement suggestion which is intended to provide a neutral perspective. Such suggestion(s) may become the foundation for an agreement, or at least facilitate further discussion between the parties.
In this situation, the mediator will usually take some time to review and analyze the facts (and the law if the parties so request) and consider the needs and wants of each party. The mediator will then fashion a suggestion and present it to the parties. Usually, the mediator will not make a settlement suggestion unless the parties have attorneys and the attorneys are attending the mediation session in which the suggestion will be made.
Another method is that the parties can agree to use an alternative dispute resolution option called “mediation-arbitration” or “med-arb” if they are unable to reach agreement through mediation. In “med-arb”, the parties agree that the mediator/arbitrator can make a decision about all or selected topics. The decision can either be binding or non-binding. If the parties chose to make the decision binding, the decision is akin to a final decision by the court.
Finally, the Neutral Evaluation process described above, can be combined with mediation in a sort of “arbitration-mediation” or “arb-med”. In “arb-med”, the neutral first evaluates the case and suggests an outcome, and then mediates or works with another mediator to assist the parties in reaching agreement based upon the neutral’s recommendation or some other criteria.
Providers of Neutral Evaluations
At DRS, Frank Abramson and Chris Leick provides financial evaluations, and Geri Napuck provides child support evaluations. Parenting evaluations can be provided by neutral parenting experts or child specialists, whom the clients retain in conjunction with a parenting mediation conducted by Ann Schaibley or Geri Napuck.
How to Start a Neutral Evaluation
- Complete the online New Client Enrollment Form by clicking here. Or your attorneys may complete this form for you by accessing the following link: http://www.drsmn.com/new_clients/new_client_form.aspx
- DRS staff will acknowledge receipt of your form and schedule a telephone conference for your evaluator and your attorneys to plan for the evaluation. (If you and your spouse, partner or other participants are not represented by counsel, the phone conference will occur with all of you.)
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