Early Neutral Evaluation Rules

Procedure for ENE

As with the identity of the evaluator, the parties have discretion in determining the procedure for the ENE process. How much of the procedure the parties wish to set will depend on the facts of the dispute, but in general, the parties may agree either that the evaluator is to determine the procedure or that the parties are to determine some or all of the procedure themselves.

If the parties want to set some or all of the procedure themselves, they should agree this at an early stage of discussions, as the agreed procedure should be recited in full in the ENE agreement. Where the parties have agreed some or all of the procedure, they should ensure that the proposed evaluator is willing to conduct the process under their agreed procedure.

Procedural considerations

The parties may specify any element of the ENE procedure, but as a minimum should consider the following:

1. whether it is necessary for the parties to provide the evaluator with a case summary and, if so, whether this should be prepared jointly or by one party with the other party to comment or provide their own separate case summary (as in litigation);
2. how many submissions each party may make and whether they should be limited in any way;
3.  whether there is to be an opportunity for a discussion of the conduct, procedure or other relevant matters prior to the ENE (which may be useful in a complex dispute), and if so whether this is to take place by teleconference meeting or in person;
4. whether the ENE will be conducted by way of a hearing, or proceed on the basis of written submissions and documentary evidence only;
5. where a hearing is to take place, whether the parties will have an opportunity to present their evidence and make submissions, and whether there is to be any oral examination of witnesses;
6. what documents the parties are expected to provide to the evaluator and/or whether there is to be a core bundle of agreed documents;
7. whether to limit the number or length of supporting documents;
8. whether the parties are to be represented or assisted at any hearing; and
9. the maximum duration of any hearing.

When discussing procedural matters, it should be borne in mind by the parties that the aim of ENE, as with ADR mechanisms generally, is to resolve disputes in a timely and cost-effective manner.

Accordingly, when determining the ENE procedure, the parties should consider the need to balance these ADR aims with the requirement to put the evaluator in a broadly equivalent position to that of a trial judge. While excessive preparation time and costs would de-value the ENE process, insufficient materials being placed before the evaluator may lead to a lack of confidence in the final evaluation properly reflecting the position between the parties.

When discussing procedural matters, it should be borne in mind by the parties that the aim of ENE, as with ADR mechanisms generally, is to resolve disputes in a timely and cost-effective manner.

Accordingly, when determining the ENE procedure, the parties should consider the need to balance these ADR aims with the requirement to put the evaluator in a broadly equivalent position to that of a trial judge. While excessive preparation time and costs would de-value the ENE process, insufficient materials being placed before the evaluator may lead to a lack of confidence in the final evaluation properly reflecting the position between the parties.

IDRC Early Neutral Evaluation Fees:

• IDRC's fee for providing this service starts from Rs 50,000 + GST.
• The fees, expenses, and their rates will vary subject to which expert is chosen.