2.Main Content
Other ADR Options
There are some less familiar types of ADR which you might come across.
Early neutral evaluation
Expert determination
Med-arb
Early neutral evaluation
In early neutral evaluation (ENE) an independent third party considers the claims made by each side and gives an opinion or evaluation. The opinion can be about the likely outcome of the case, or about a particular point of law. The third party can either be an expert in the subject of the dispute, or an expert in law (such as a barrister or a judge). The same opinion is given to both sides in the dispute.
The opinion is not legally binding – it is up to each side to decide how to respond. It may make you more determined to fight your case in court because you think you have a real chance of winning. Or it may make you more willing to negotiate a settlement because the outcome is too close to call.
ENE can help focus the parties' minds on realistic outcomes by giving them an objective view of their arguments. It is most often used in civil and commercial disputes, or contract disputes between large businesses.
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Expert determination
In expert determination, an independent third party considers the claims made by each side and issues a binding decision. The third party is usually an expert in the subject of the dispute and is chosen by the parties, who agree at the outset to be bound by the expert's decision. It can be most suitable for determining technical aspects of a complex dispute.
In effect, expert determination is a from of arbitration or adjudication. Unlike arbitration, it is unlikely to be written into a contract before a dispute arises. The expert will probably be chosen, agreed and appointed jointly by both sides in order to settle the dispute without the time and expense involved in going to court. Like Early Neutral Evaluation, it is most likely to be used in expensive commercial disputes.
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Med-arb
Med-arb is a combination of mediation and arbitration, though not a blend. Each process is kept separate. Mediation is attempted first, and if no agreement results, the dispute will go to arbitration, where a binding decision will be issued. In some cases the same person acts as mediator and arbitrator; in others a different neutral person is brought in to arbitrate.
The idea of med-arb is to combine the advantages of both mediation and arbitration. If it is possible, both sides will agree a settlement through mediation. If they can’t agree, they both know that in the next stage an arbitrator will make a final decision for them.
The advantage of using the same person to mediate and to arbitrate in the same dispute is that the mediator/arbitrator will know the details of the case if they need to make a decision about the outcome. But this can also be a problem. One of the advantages of mediation is that both sides feel free to discuss the case, and to put offers on the table, while knowing that it will all remain confidential. Neither side can use any of this information in any court proceedings later, unless a judge orders if for a particular reason. In med-arb, if the same person acts as mediator and then as arbitrator, the information given in the mediation stage could well affect his/her ability to be completely neutral as an arbitrator.
If you are considering using med-arb, you should think very carefully about whether you want the same person or different people at each stage of the process, and agree this with the other side.
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August 2008
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