14 Disp. Resol. Mag. 10 (2007-2008)
Early Neutral Evaluation or Mediation - When Might ENE Delivery More Value

handle is hein.journals/disput14 and id is 12 raw text is: mong ADR processes, mediation is sweeping the
field. Even when other forms of ADR are avail-
able, mediation is the process of choice in the
vast majority of circumstances. But should this be so?
How thoughtful and well-informed is this most commonly
made choice? Do parties too often end up in mediation
as a result of little more than subcultural inertia, or
because mediation appears (to the superficial eye) to be
the least demanding and least threatening form of ADR?
Do litigants and lawyers choose mediation because they
assume that they know what mediation is-because it
feels familiar and comfortable-while passing over other
ADR processes largely because they are less familiar and
less malleable in our imaginations?
If we are to be good counselors, we must seek more solid
bases for making important process choices. Toward that
end, this article identifies factors or circumstances that could
commend early neutral evaluation (ENE) (for more descrip-
tion of ENE, see the sidebar titled ENE: Key Purposes and
the Process) to more careful consideration. It is no part of
my purpose to denigrate mediation or to discourage its use.
Mediation can be a wonderful process, and in many circum-
Wayne D. Brazil has been a United States
Magistrate Judge in the Northern District of
California since 1984. He is also a member of
the Dispute Resolution Magazine editorial

stances, mediation will most likely meet the needs of the
parties. But in a time of expanding process pluralism, it is
not wise to consider mediation the only available option.
When trying to decide between mediation and ENE,
we must begin by asking ourselves two big questions.
First, at this specific juncture in the litigation, what are
the most important needs we want to meet, or objectives
we want to achieve, through an ADR process? Second, to
which kind of mediation are we comparing ENE?
There are many different objectives that we (as litigants
or lawyers) could use an ADR process to pursue. Which of
those objectives is most important-or most feasible-can
change at different junctures in the pretrial period.
Settlement may not be our primary objective in some situa-
tions, or it may not be feasible at some points. But even if
our goal at a given juncture simply is to get the case settled,
we need to determine what the principal barriers to settle-
ment are and how best to attack them. In other words, we
need to identify the things that we could do through an
ADR process that are most likely to enhance our chances of
getting a deal. Then we need to select the ADR process
that holds the most promise for accomplishing those things.
And before we slide into choosing mediation, we bet-
ter be sure we know what kind of mediation we would be
getting. Some mediators purport to offer you the full
range of forms of mediation, from the truly transforma-
tive, through the facilitative (or elicitive), all the way
to the most aggressively evaluative (or directive). Some
mediators also will say you can choose from a variety of


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