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1. What is Neutral Evaluation?
Neutral Evaluation is a structured but informal proceeding. You and your lawyers present their case and the key evidence to one another and the evaluator, who is a settlement judge. The evaluator will review the case and provide an assessment of its merits (the "evaluation"), i.e. his best estimate of the parties' likelihood of success at trial. You can use the evaluation to settle their case or as a basis for settlement negotiations.
You may read more about Neutral Evaluation in this Law Gazette article.
2. How is Neutral Evaluation different from Mediation?
Mediation is a mode of resolving disputes in which a neutral third party – the mediator – assists the parties in negotiating a possible settlement to their disputes. The focus of mediation is to find solutions that meet the underlying interests of the parties and not on evaluating the merits of the case. The focus of a neutral evaluation is the assessment of the merits of the case.
Mediators may meet you privately to facilitate a settlement. However, private sessions are generally not used in Neutral Evaluation so that no private information that could be use in making the evaluation flows from a party to the evaluator.
3. Is an Evaluation binding on the parties?
You and the other party may decide whether the evaluation would be binding. The default position is that it would be non-binding. Where parties choose binding Neutral Evaluation, they agree to record a consent judgment or terms of settlement to give effect to the evaluation.
4. What are the benefits of using Neutral Evaluation?
(a) Saves legal costsEarly settlement through Neutral Evaluation means that you can avoid the cost of preparing for a trial.
(b) Provides you with the best estimate of the likely outcome at trialThe evaluator will be an experienced judge who will give both parties his best estimate of the likely outcome at trial as a neutral party. He will provide an additional, independent perspective on the strengths and weaknesses of your case and the other side's.
(c) Low costIt will generally cost you less expense to go through a Neutral Evaluation than a trial.
(d) A day in "court" You have a chance to present your case together with your lawyer before a neutral party, who is a judge to assess it.
(e) Narrows issues in disputeNeutral Evaluation often helps parties to clarify or narrow issues. This increases the likelihood of success of subsequent settlement discussions. If the matter still proceeds to trial, the number of days of trial and legal costs may be reduced as the issues are narrowed.
5. How are cases referred for Neutral Evaluation?
A deputy registrar hearing a summons for direction (SFD), i.e. a hearing that your lawyers attend to obtain directions for the matter to proceed to trial and/or consider ADR options, may recommend that your case be referred for Neutral Evaluation. Your case may also be recommended for Neutral Evaluation by a settlement judge at SCCDR or a judge conducting pre-trial conferences at the Civil Trial Courts.
If both parties agree to refer the case for Neutral Evaluation, the court will arrange for it.
6. What type of cases are likely to be recommended for Neutral Evaluation?
The following types of cases may particularly benefit from Neutral Evaluation:
a. Cases that turn on documentary evidence, e.g. construction related matters;
b. Cases that turn on conflicting expert evidence where it might be costly and time consuming for expert witnesses to testify at length at trial, e.g. medical negligence cases;
c. Where parties want a neutral person with subject matter expertise to assess the merits of their case to know the strength of their case better; and
d. Where both sides believe that they have a strong case and are therefore unwilling to explore settlement. A neutral assessment of the strengths of each case may therefore be useful to break the deadlock.
Where parties are uncertain about whether Neutral Evaluation is suitable, mediation would usually be a better ADR option at the start, if all parties are open to exploring settlement.
7. What happens after a case is referred for Neutral Evaluation?
Within 21 days after a case has been referred for Neutral Evaluation, the SCCDR will schedule a Preliminary Conference between a settlement judge and their lawyers. At this conference, the judge will discuss with the lawyers the following matters:
a. Whether parties intend the evaluation to be binding;
b. Whether affidavits of evidence-in-chief would be exchanged;
c. The identities of the factual and expert witnesses that will attend the hearing;
d. The convenient dates to schedule the Neutral Evaluation; and
e. Any other matters that will facilitate the quick and economical conduct of the neutral evaluation.
Once the Neutral Evaluation hearing date has been fixed by the SCCDR, you/your lawyer must submit a concise written statement setting forth your claim and annexing all material documentary evidence that you intend to rely on at the hearing. This must be done no later than two working days before the hearing.
8. Who needs to be present at the Neutral Evaluation?
The parties and their lawyers should attend the hearing. The factual and expert witnesses whose identities are confirmed and agreed upon at the Preliminary Conference should attend.
In the case of corporations and other entities, the representative who has final authority to settle and who is most knowledgeable about the case should attend.
9. What happens at the Neutral Evaluation hearing?
At the Neutral Evaluation hearing, the parties and their lawyers will present their case and the available supporting evidence to one another and the evaluator. Key witnesses on each side will be called to give testimony. Rules of evidence do not apply in this process. Cross-examination will generally not take place.
Where separate expert witnesses are called, they would give evidence using the expert witness conferencing approach set out in the next question below. The evaluator may at any time during the Neutral Evaluation hearing ask questions to probe or clarify any submission or evidence presented by the parties and their witnesses.
Where suitable, the evaluator would also identify areas of agreement or disagreement. The parties would also be given the opportunity to make any responsive presentations. After all presentations and evidence have been made or delivered, the evaluator will deliver an oral assessment of the merits of the parties' case.
10. What is Expert Witness Conferencing?
Expert Witness Conferencing is a process used to clarify the technical issues of a case. It involves the joint hearing of all expert witnesses in the presence of one another. Each party's expert witness would be afforded the opportunity to question, clarify or probe any contending views proffered by the other expert. At the end of the process, each expert would summarise his opinion, highlighting the areas of agreement and disagreement with the other side's expert. This approach differs from the traditional mode of witness hearing where witnesses are examined and cross examined one by one.
**At any time during
the Witness Conferencing process, the Evaluator may intervene and ask questions
to probe or clarify.
11. Does Neutral Evaluation preclude the use of other forms of ADR?
No. In the course of mediation, the parties may decide that Neutral Evaluation may be more helpful and proceed with that process instead. Conversely, if parties are unable to settle their case after Neutral Evaluation, the settlement judge may recommend that other ADR processes be pursued, such as mediation.
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