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The Merits of Early Neutral Evaluation

by Wayne Brazil
March 2017

JAMS ADR Blog by Chris Poole

Wayne Brazil

I am a professional mediator – and a passionate devotee of its virtues. Mediation, however, can take many forms, depending on the individual needs of a particular dispute or its parties. In my book, for example, I address the uses and benefits of Early Neutral Evaluation and outline when ENE might be a better alternative for a particular dispute.

ENE aims to position the case for early resolution by settlement, dispositive motion or trial. It may serve as a cost-effective substitute for formal discovery and pretrial motions. Although settlement is not the major goal of ENE, the process can lead to settlement.

In ENE, the parties and their lawyers can be confident that they have seen every bit of evidence and heard all the arguments that has gone into the evaluator’s mind before they form their assessment of the merits. There is no ex parte communication with the neutral before they commit their evaluation to writing. In ENE, the parties also know that the same assessment is being presented to each of them – because they hear it at the same time. And they can be confident that the evaluative inputs they hear are rooted in the evidence and law. 

Typically ENE can enhance communication between the parties about their claims and supporting evidence, provide an assessment of the merits of the case by a neutral, provide a “reality check” for clients and lawyers and identify and clarify the central issues in dispute.

Ultimately, there are significant differences between ENE and mediation, as well as between various forms of mediation – and wise counsel will attend carefully to those differences when helping their clients select the form of ADR that promises to best meet the needs that will play the most important roles in positioning their case for disposition – by agreement or otherwise. 


Hon. Wayne D. Brazil (Ret.) is fully engaged as a neutral at JAMS, after earning a national and international reputation as one of the most significant innovators and leaders in the field of Alternative Dispute Resolution (ADR). He is an expert in crafting procedures to meet the needs of individual cases – and in finding new directions when movement toward settlement seems to stall.

Judge Brazil spent 25 years as a magistrate judge in the United States District Court for the Northern District of California. He exercised the full range of judicial responsibilities, presiding over civil and criminal trials, managing the pretrial development of civil cases, hearing substantive and procedural motions, and ruling on fee disputes. His extensive work as a settlement judge and on complex discovery matters earned him national recognition and was rewarded when the Chief Justice of the United States appointed him to the committees that write the federal rules of civil procedure and evidence. He also led the teams that designed and implemented the Court’s multi-faceted ADR program, then he served as the Court’s first ADR Magistrate Judge, a position he occupied for more than 15 years.

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