An Underused ADR Tool: Neutral Evaluations in Family Law

Family law practitioners understand that emotion is a major component of their clients' disputes. Therefore, it is critical that counsel embrace tools that enable their clients to realistically evaluate the risks and rewards of contested hearings by tempering emotion with reason. An underused tool is having a neutral evaluator review a case in advance of a contested hearing.

Clients want warriors who support their version of reality; as a consequence, they do not—or cannot—hear contrary facts or consider the risks associated with any contested hearing. More often than not, clients may consider any adverse result to be the fault of the lawyer or the judge and not the due to the merits of their case. It is the warrior lawyer’s responsibility to develop and support the client’s version of reality. Because of this, counsel often downplays the significance of adverse facts. Conducting a neutral evaluation can serve as a reality check for both counsel and the client.

Neutral evaluation was introduced in the 1980s as a way to facilitate resolution of disputes prior to trial. At the time, it was used early in the case, hence the name “early neutral evaluation.” The idea was that the parties would benefit from having their claims evaluated by a subject matter expert before engaging in protracted litigation. In its original form, an experienced litigator or retired jurist read statements of the parties' claims and reviewed supporting evidence, met with counsel and the parties, listened to oral presentations and then provided the parties with an evaluation. The evaluator did not act as a mediator or settlement judge, and the evaluation had no evidentiary value. It was simply an analysis of the claims by an experienced practitioner with no stake in the outcome. Its purpose was to provide the parties with an opinion based on an independent diagnosis of the facts before they engaged in protracted litigation.

A neutral evaluation can be useful in a variety of settings. It can be requested by one or both parties before one or multiple evaluators, with or without evidentiary presentations. Given this flexibility, it can provide counsel and their clients with a reasoned analysis apart from the emotions of the litigants. Consider the following:

• Counsel for both parties realize that there is a range of possible outcomes and thus agree to have a retired jurist evaluate the dispute based on written submissions on the law with reference to the key facts and oral argument.

• When expert opinions are central to the dispute, the opinions are given to the evaluator to assess.

• When the credibility of the parties is at issue, deposition transcripts and video (if available) are provided for the assessment. Inthe absence of depositions, the parties may testify on direct, and the evaluator may or may not query them.

• Third-party testimony can be provided through depositions or declarations.

• When the parties cannot agree on a single evaluator, they can choose multiple evaluators, who would consider the presentations at the same time and issue separate assessments, or they may be asked to issue a single assessment.

• The evaluation may occur early in the proceedings, in advance of a settlement conference or on the eve of a contested hearing, and it may address a single aspect of the dispute or the entire conflict.

• Each of the scenarios can be employed by one party without the participation of the other party. In that event, counsel can have a colleague engage in a vigorous cross-examination of the client.

The end result is a reasoned opinion based on what is presented by an evaluator with no stake in the outcome. It is an evaluation without any direct consequence. The benefit is that the parties can better understand the risks of litigation; they have been able to tell their story, and they now have a reaction to that story. This can facilitate settlement because the evaluator is not swayed by the emotions of the parties. The evaluator is not playing the warrior lawyer, who may be unable or reluctant to acknowledge the risks of the case. These benefits allow the client(s) to assess the value of a negotiated resolution in comparison to a contested result. This reasoned analysis can temper the parties' emotions.

Given the flexibility and the value of a neutral evaluation, it is a tool that is worth considering in any dispute.