'Judges are prepared to act as neutrals without charge and the courtroom comes free'
When opening the toolbox of dispute resolution these days, we are confronted by a baffling array of implements:
Litigation - an ancient and expertly machined tool, but a trifle too heavy for some purposes
Arbitration, equally old and traditionally even heavier, with a reputation for being somewhat unpredictable, even in the hands of experts, but now available as a lightweight, adaptable, user-friendly version courtesy of the 1996 Arbitration Act
Mediation, a bit like a shuttle, weaving between the parties, revealing their weak spots (at least to themselves if not to each other) before binding them into an agreed settlement
Adjudication, instant, all purpose, cheap and dirty justice available from a spray can. And a recent addition, barely out of its cellophane cover - early neutral evaluation, or ENE.
Robert Stevenson, of construction solicitor Berrymans Lace Mawer, recently explained to the Society of Construction Law, a friendly bunch of enthusiasts spanning the various disciplines that make up and serve the construction industry, how ene worked.
The idea is that you can obtain a decision on the relative merits of a dispute from someone who knows what they are doing (the neutral), after a review of relevant documentation but without the rigmarole of a full blown trial. The process is intended to be non-binding, so what the parties do with this decision is up to them. They can agree to abide by it, use it as a basis for settlement or put it in the bin.
For ene to be effective it needs to be based on the evidence that would ultimately be relied upon at trial. The trick then, is not to turn to ene early, but to wait until the issues have been defined and the evidence is exchanged. It is at this stage that the parties are most likely to conclude a negotiated settlement themselves. But if negotiations reach deadlock - and in my view the main obstacles to a negotiated settlement are: (1) bad advice, (2) loss of reason and (3) men of principle (see (2)) - the case can be presented to a neutral who may 'unlock' a settlement.
Judge Toulmin, who usually sits in the Technology and Construction Courts (TCC), described the process from the perspective of the neutral. He had to work hard before meeting the parties to assimilate the material and sketch out a decision.
On the day, after brief opening statements, the parties dealt with his questions. After a short period of reflection, he was able to give a preliminary finding on the same day. The parties then used this as a basis for a later settlement. Judge Toulmin believes that it is crucial that parties should be present on the day to witness, albeit in much truncated form, what they have in store for them if they can not compromise.
Early neutral eval-uation is much favoured by the Commercial Court which maintains a list of neutrals. The tcc may follow suit. The main advantage of having a judge as your neutral is that you obtain a judicial indication as to the likely outcome should you go to the trouble and expense of a trial. Furthermore, judges are prepared to act as neutrals without charge and the courtroom comes free. After the evaluation, the judge is disqualified from further involvement in the case.
Now that disputes are allocated to a judge at the outset, this may not be a bad thing. It could be used as a nifty way to oust a difficult judge from the tool kit.
A list of neutrals for ene can be obtained from the Commercial Court Registry, Royal Courts of Justice, Strand, London, tel 0171 936 6826
The Society of Construction Law can be contacted on 01235 770606.