2024 was labelled “the year of non-Court dispute resolution”, as the UK Government changed legislation to direct more family law cases towards other services in the hope more cases would be resolved outside the Courtroom. Early Neutral Evaluation and Mediation emerged and continue to be the most popular alternatives to court proceedings. Below, we answer the question: “what is the difference between early neutral evaluation and mediation?”
With Family Courts under great strain amid an increasing backlog of cases, the UK Government is clamping down on cases heading to Court that really don’t need to be there. The only exception to this are cases involving domestic abuse or child protection issues.
The UK Government’s hope is that the early resolution of disputes will not only reduce the pressure on the Family Courts but spare more families from the unnecessary stress, and added costs, which come with going to Court.
Early Neutral Evaluation (ENE) and Mediation have answered the Government’s call, providing alternative dispute resolution solutions to help people keep their case out of the Courts.
The Early Neutral Evaluation vs. Mediation debate
The UK Government’s backing of early dispute resolution has pushed ENE and Mediation into the spotlight. There is debate surrounding which is best as an alternative dispute resolution option.
The Holland Family Law stance is that the Early Neutral Evaluation vs. Mediation debate isn’t really a matter of which is best, it’s which one is right for each individual case. Every case is different, and any alternative dispute resolution applied will be based on the circumstances of a given case. In some cases, mediation and early neutral evaluation would work well together.
How do ENE and Mediation differ?
Early Neutral Evaluation
ENE takes a structured, evaluation-style approach to dispute resolution. This process involves each party presenting their cases to a neutral evaluator – usually an experienced legal professional or family law specialist.
The evaluator, who has no vested interest, carefully assesses the merits and potential pitfalls of each party’s arguments and then provides an impartial evaluation of the case’s strengths and weaknesses.
Mediation
Mediation prioritises communication and seeks to find common ground as a means of resolving disputes. Parties engage with a trained mediator who facilitates dialogue, encourages active participation, and creates an environment that helps each party to reach mutually acceptable agreements.
Evaluation vs. facilitation
The fundamental difference between ENE and Mediation is the approach to resolving disputes. With ENE the evaluator can tell you what the outcome should be whereas a mediator cannot.
Holland Family Law have found that the most successful method to resolving disputes is with evaluators and mediators working together.
For example, if one party seeks to argue that owing to their greater financial contribution towards the marital wealth, they should receive a greater share but the other does not agree, an evaluator can tell the parties how this argument might be considered by the court and ultimately, when the court decision is likely to be. Having had this advice, the parties can return to mediation to discuss any remaining issues.
Having been involved in the case and having understood the issues, the evaluator can also draw up the terms of the financial agreement reached in mediation.
What’s the success rate for ENE?
According to a study published by the Law Foundation of British Columbia, Early Neutral Evaluation in family law is highly successful.
An excerpt from the study reads: ‘Although settlement is not the main purpose of ENE, evaluations show that it does result directly in settlement in as much as one third of cases and that it increases the likelihood of settlement in many more (60% of lawyers and parties report ENE results directly in settlement or improves settlement prospects).’
ENE can be used for any family law dispute.
For mediation, though it can be effective in many family law cases, it can struggle to resolve disputes that are characterised by high conflict or deep-rooted emotional issues, meaning cases will end up where the UK Government doesn’t want them to… in Court.
As for settling the Early Neutral Evaluation vs. Mediation debate as to which one is better, there is no better, only which one’s right for the specific circumstances of a family law dispute, and the preference of the parties involved.
ENE helps parties to manage their expectations and make informed decisions about further legal proceedings. Plus, it could steer parties towards mediation anyway.
Got questions about Early Neutral Evaluation?
Holland Family Law’s evaluator is Jennifer McNeil. If you’ve got questions about ENE, she’s the person to speak to. Jennifer is a Director of Holland Family Law, and has over 18 years of experience in family law. Jennifer deals with all aspects of family law including the arrangements for children with separated parents and the division of assets on divorce.
Jennifer has a firm grasp of the legal issues affecting such disputes and the significant impact such disputes have on her own clients which she is keen to minimise.
When called upon to do so, Jennifer advocates for her clients in Court giving her a rounded understanding of how the Court might determine such issues. If instructed early enough in her own cases, she is often able to resolve the dispute without it ever reaching a Court application which is a daunting undertaking for clients.
