All parties and decision makers must be present at the ENE session. The parties and decision makers must be prepared to remain present to participate in the mediation until agreement is reached or the mediation is terminated.
If an insurance carrier is involved, a claims representative with appropriate authority and with telephonic access to any other decision maker who can grant additional authority.
The evaluator is an experienced attorney with expertise in the subject matter of the case. The evaluator’s role is similar to that for both and arbitrator and a mediator.
The evaluator will listen to each side’s presentation of their case, ask clarifying questions, and prepare a written evaluation regarding the merits of the case and the judgment/settlement value of the case.
If the parties agree, the evaluator may then serve as a mediator, helping the participants to reach a settlement.
If the parties do not request the evaluator to facilitate settlement discussions, the evaluator will assist the parties in preparing the case for further disposition.
Counsel and clients should be prepared to discuss all relevant issues. Before the ENE session, clients and counsel should discuss the ENE process and understand it is confidential and non-binding. As part of preparation, counsel are encouraged to discuss with their clients a complete and reasonable litigation budget, without downplaying the costs of proceeding to trial.
Counsel and clients should be prepared to state their own position and to listen carefully to that of the other side. Persuasive and forceful communication is permitted, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become entrenched and thus discourage progress.
All participants at the ENE session will be required to sign a confidentiality agreement. Communications made in conjunction with an ENE session ordinarily may not be disclosed to the assigned judge or to anyone else not involved in the litigation, unless otherwise agreed.
The confidential written evaluation is non-binding and is not shared with the trial judge.
Counsel exchange and submit required written ENE statements at least 10 days before the ENE session. These statements are not filed with the court.
The evaluator will convene an informal meeting of clients and counsel. At the meeting, each side will present evidence and arguments supporting its case in a narrative format, without direct or cross-examination of witnesses.
The evaluator will ask questions after the initial presentations, and then each side may present a responsive presentation. Following the presentations, the evaluator will identify areas of agreement and disagreement, clarify and focus the issues, and encourage the parties to enter procedural and substantive stipulations.
The evaluator will then, outside the presence of the parties, prepare a written evaluation. The evaluation may include an estimate, where feasible, of the likelihood of liability and the dollar range of damages, and an assessment of the relative strengths and weaknesses of each party’s case.
If requested by the parties, the evaluator will also facilitate settlement discussions.
Although parties are encouraged to exercise restraint with respect to conducting discovery while ENE is pending, any party who participates in ENE retains the right to obtain discovery.