Neutral Evaluation : Pros & Cons
Neutral Evaluation was originally conceived as a case management tool. It was designed to provide the
parties with an early, efficient and meaningful opportunity to communicate about their dispute; to move
them and their counsel to meet early to clarify issues and identify areas of agreement; and to assess
realistically, the relative strengths and weaknesses of their positions, thus encouraging early
Two Key features of this Ordinance are contained in Section 11 thereof - it adds a new Section 12A in the main Act:
- Neutral Evaluation provides an opportunity for early, open and direct communication, enabling
parties to focus on the core issues in dispute. The process motivates counsel and parties to
concentrate on the case earlier than usual and enables them to increase their understanding of
the issues while learning what their opponent’s case really is all about. Neutral Evaluation is
especially useful when the parties need or desire to maintain an ongoing relationship. It allows
the parties to avoid the adversarial elements of litigation which often make it difficult to continue
a productive relationship. The process is non-binding. There is no risk of obtaining an
unfavorable adjudication of one’s case.
Neutral Evaluation is confidential (unless agreed otherwise by the parties), subject to the
application of the Right to Information Act, when the Government is a party. Neutral Evaluation
may generally reduce litigation costs. This is of importance both to corporate parties who wish to
keep costs down, and to parties who otherwise might not be able to afford the cost of litigation.
The costs of the process or compensation given to the Neutral Evaluator are generally borne
equally by all parties, providing all parties with an equal stake in the outcome and an equal
sense of ownership.
Neutral Evaluation is widely applicable to civil cases of varying types and complexity. It is a
valuable aid to settlement in straightforward disputes where there are only a few clearly stated
issues or where greatly differing expectations of the outcome are present. It can be especially
effective when the parties have reached impasse on technical or scientific issues where the
Neutral Evaluator has such expertise.
The presence of a third-party neutral allows for a controlled and impartial process which may
help the parties recognize the limitations of their cases and favors a prompt, early settlement.
The presence of the Neutral Evaluator can even introduce a fresh and creative perspective to
the litigation, helping the parties to search for alternative solutions.
Neutral Evaluation may assist in de-personalizing an issue by giving clients an opportunity for
catharsis, thus removing a sometime major obstacle to produce settlement discussions. It can
also assist in tempering unrealistic expectations of the outcome. The Neutral Evaluator’s direct
objective and impartial assessment serves as a “reality check” for the parties and their lawyers,
bringing frivolous matters to an end or fundamentally altering their expectations. It brings to the
negotiation table serious and realistic offers (or dismissal of claims) that may eventually result in
an early settlement. Neutral Evaluation provides the parties with the possibility of exploring all
the appropriate Dispute Resolution options after the dispute has arisen without restricting any
party in advance to any inappropriate option.
Neutral Evaluation Has Many of the Benefits of Arbitration and Mediation. And unlike arbitration,
neutral evaluation has none of the baggage of adjudication. It is a completely voluntary process,
under the same terms as Mediation, from which no order, judgment, sanction or levy of costs or
fees will happen, unless both/all of the parties themselves agree to such. Neutral evaluation, on
the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative
baggage of arbitration.
The only thing that is likely to result from neutral evaluation is understanding - which, admittedly,
can sometimes be a rather scary thing itself, and which, I suppose, can in some circumstances
be 'baggage' as negative as that carried by any other dispute resolution mechanism.
There are several disadvantages also which are as follows:
Possible overall added costs to litigation if the process does not produce settlement or if the
process is pursued in bad faith. Neutral Evaluation may be vulnerable to manipulation as it may
be used to preview a counterpart’s case; or else, if pursued in bad faith (when a defendant
agrees to the process, but does not frankly cooperate), it can also be used as dilatory tactics.
Neutral evaluation is not a solution to every case, and in some cases it simply won't work. And
this slippery thing we call "neutral evaluation" is not one simple, monolithic, identifiable process
anyway. How can you tell the difference between "neutral evaluation" slipping into mediation on
the one hand, and an evaluative mediation where the mediator brings a lot of subject matter
expertise to the table on the other hand? Is there a difference between a "neutral evaluation"
process aimed at leading to better case management and case mentoring, as opposed to what
a special master or referee often does when organizing a complex case?
Whatever it really is, or whatever we may eventually end up calling it, one can be convinced that
something along the lines of the process we now call "neutral evaluation" will someday become
a cornerstone of our justice system, every bit as important as mediation and arbitration.
A case Evaluator’s insights are very different from those of experts that are hired during litigation, and
offer a more objective perspective than a lawyer representing a party in litigation. The central feature of
Neutral Evaluation involves an informal, confidential, impartial and brief evaluation session of a dispute
that may take place at any time, but preferably as early in the dispute as possible.