As Early Neutral Evaluation proves itself in several counties across Minnesota, we are seeing more attorneys becoming proactive in using this tool in their case management strategy. Many are not waiting for an ICMC Order where the court explains the process and the option, then issues an Order suspending the court deadlines, etc. Bypassing this can work in many cases, provided the following issues are addressed:
- Without the ICMC Order, court scheduling deadlines continue, and can create additional pressure on the parties;
- Parties and attorneys don’t get the “pitch” from the judge, explaining the process and how it is different from “mediation” or a settlement conference;
- The location, fees, and scope of the ENE (parenting issues or financial) are not set out in an Order, so there can be confusion over these details that can affect the sense of confidence of the parties in the session.
As with any ADR process, the perception of the parties and their attorneys can make or brake its effectiveness. When parties go ahead with arranging sessions aside from the court’s process, there are a few tips that will help make it worth everyone’s time and resources:
- Decide on an experienced neutral first, then let him or her guide the process. This will maximize the sense that this is a truly neutral process, and make use of the neutral’s experience in creating an environment that will be best suited for settlement;
- Manage Scheduling to Avoid “hurrying” the process. This means either scheduling ENE before filing, or else requesting a scheduling order that allows time for the sessions, and managing formal discovery deadlines so that they don’t sabotage the settlement process.
- Be clear about the Scope of the Issues to be Settled. Many ADR sessions fail because they bite off more than they can chew in terms of issues to resolve. Experience shows that parties have only so much stamina when it comes to the hard work of conflict resolution. Limit the scope, and let the parties experience success – this will empower them to not only address the remaining present issues, but equip them for a future without litigation as the “go to” remedy for conflict;
- Be sure that time, place and payment details are communicated in writing prior to the session. Not doing this will drain emotional and mental energy as parties have to solve these things just prior to or at the session, before they even start on the issues they came to solve.
- Attorneys – Do your homework on ENE. Without the help of the court’s “pitch”, attorneys and parties are likely to enter into ENE with misconceptions about the process. The risk here is that the mindset of a settlement conference, or the classic “ping-pong match” approach will turn it into a positioning session for trial. The true advantage of ENE is that the parties will get a neutral opinion as to outcome that can be used as a starting point, rather than starting in opposite corners and seeing how much the other is willing to give up. ENE has a different STARTING point – and that is its strength for helping families change how they resolve conflict.
We are documenting a radically higher settlement rate with ENE than any other form of ADR for families. We hope that this success will be shared in every county across Minnesota. This will take a lot of work, but we think the lives of children and families are well worth it.