ALTERNATIVE DISPUTE RESOLUTION (ADR) PART 3 OF 3: ENES AND SETTLEMENT CONFERENCES

Jun 6

The third of this three-part series will provide an overview of Early Neutral Evaluations (“ENE”) and Settlement Conferences. Like mediations, ENEs and Settlement Conferences involve discussions with neutrals; however, unlike mediations, these are often conducted through the courts and with other judges.

ENEs can be conducted in any number of ways. One version involves the parties and their attorneys participating in a confidential evaluation with a neutral attorney with subject matter expertise. Unlike a mediator, which is selected by the parties, the ENE neutral is appointed by the court. Following the parties’ presentations of their case, the evaluator prepares a statement assessing the strengths and weakness of each party’s position concluding with a nonbinding opinion of the likely outcome of litigation. ENEs have been increasingly used by Federal courts and can be conducted by Federal judges – sometimes even the judge of your case – in hopes of facilitating an early resolution of the case or, at the very least, setting groundwork for further discussions.

As with any form of ADR, there are advantages and disadvantages of ENEs. ENEs require parties to realistically assess their cases early on and, for better or worse, result in neutral feedback at the outset of the case. Such feedback has the effect of resolving cases sooner rather than later, whether that be through settlement, discovery, or pretrial motions. ENEs often give litigants an early snapshot of their case and likelihood of success early on before expending a great deal of time and resources on litigation. In some ways, the advantages can also potentially have a deleterious effect of further settlement discussions. For example, if a party were to receive positive feedback from the neutral evaluator, that party may be less inclined to pursue settlement and more inclined to take the case to trial. As with a mediator, the neutral has no power to impose settlement. Finally, the determination by the neutral is nonbinding and is not shared with the trial judge. Other times, like in the Southern District of California for example, ENEs are conducted with the assigned judicial officer supervising discovery so the ENE conference may run the risk of coloring the judge’s opinion moving forward.

Settlement Conferences, like ENEs, are typically conducted after litigation has been initiated. Settlement Conference can be either voluntary in nature or mandatory per order of the Court. Settlement Conferences operate very similarly to mediations and ENEs with the distinction being that Settlement Conferences overwhelmingly involve a judge, whether that be the judge assigned to your case or another from the court house. The process is much like a mediation where both sides appeal to merits of their case and their version of settlement. Though conducted by a judge, Settlement Conferences are nonbinding and parties cannot be forced to settle nor are there “findings” made during the course of the conference.

Settlement Conferences are often useful when the parties have already engaged in settlement discussions but may need a nudge to reach a resolution. Having a judge, perhaps even your assigned judge, tends to lend some gravitas to the discussions and, depending on the judge’s comments and input, can cause parties to think long and hard about the merits of their case. Settlement Conferences, because they are often conducted through the courts, do no require fees which can make them a cost-effective alternative to a mediation. On the flip side, having a judge, even your assigned judge, hear arguments from the parties can be a risky gambit. Though confidential in nature and engaged in under settlement privilege, facts, arguments, and even the conduct of the parties may have a lasting impact on the judge. Since Settlement Conferences are conducted through the courts, parties are often at the mercy of the court’s calendars. As such, whereas mediators are often flexible with scheduling, Settlement Conferences dates can sometimes be months out from when first scheduled. Finally, ADR is often used at the outset of cases to, in large part, keep fees and costs at a minimum. Settlement Conferences are often conducted after litigation has commenced – sometimes even weeks or days before trial – which means that, by the time they occur, both parties have expended a great deal of fees and costs.

ADR can be a useful tool but is not a one-size-fits-all proposition. It is important that you confer with experienced counsel to evaluate and choose the best ADR fit for you and your case. You have finished reading Part 3 of a 3 Part series on ADR. Read our Part 1: Mediations and Read our Part 2: Arbitrations to learn more.

ADRAlternative Dispute ResolutionENESettlement Conferences

Andrew Hall

Attorney Andrew Hall has over 10 years of experience handling complex real estate, business, and litigation matters throughout California and Washington. Andrew has vast experience with a wide range of clients – from residential to commercial property owners, landlords to tenants, real estate agents to brokers, title to escrow companies, hard money lenders to banking institutions. Andrew has handled cases ranging from administrative disputes, to unlawful detainers, to bankruptcies, to litigation, leaving his clients with the confidence that he can handle all of their needs from soup to nuts.

Andrew is committed to exploring efficient and cost-effective resolutions for his clients, whether that be through informal conversations with parties or attorneys, mediations, or settlement conferences. However, when litigation is inevitable, Andrew has counseled his clients through all stages of a dispute, including arbitrations, court trials, jury trials, and appeals at both the State and Federal Court levels.

Andrew resides in Carlsbad with his wife Lauren, son Nolan (7), and daughter Madeline (5). Andrew is actively involved with the Magdalena Ecke Family YMCA, where he can often be found on the weekends cheering Madeline on in any variety of youth sports or with Nolan participating in the Y’s Adventure Guides Program. Andrew enjoys playing golf, tennis, softball and good barbeque.

Andrew is committed to identifying his client’s goals and employing his big firm experience with small firm attention to help his clients achieve those goals.