Alternative dispute resolution is spoken of as if it were a single alternative. It is better understood as a toolkit, and the tools do different work. Mediation repairs a negotiation. Arbitration replaces the court. And between them sits a tool that deserves to be far better known: early neutral evaluation.

What the evaluator does

In an early neutral evaluation, the parties jointly instruct an experienced neutral — typically a senior practitioner, retired judge or specialist — to consider the core of the dispute and express a view on the likely outcome: who would probably succeed, on which issues, and within what range. The evaluation is ordinarily non-binding and conducted on a without prejudice footing. It decides nothing. What it does is alter what the parties know.

That alteration is often decisive. Disputes persist not only because parties want different things, but because they predict different futures: each side’s advisers, quite sincerely, rate their prospects highly, and each party negotiates from that optimism. A credible neutral view punctures the optimism on one side or both. Negotiations that were deadlocked at a confident impasse frequently settle within weeks of an evaluation, because the parties are at last bargaining about the same predicted future.

The court’s own version

Early neutral evaluation is not confined to private arrangement. The Civil Procedure Rules expressly empower the court, as part of active case management, to take any step for the purpose of managing the case and furthering the overriding objective — including ordering the parties to engage with ENE, and in some lists the judges themselves will conduct one. In Lomax v Lomax [2019] EWCA Civ 1467, the Court of Appeal held that the court may order a judicial early neutral evaluation even where one party does not consent. The direction of travel, confirmed again in Churchill v Merthyr Tydfil [2023] EWCA Civ 1416, is consistent: the modern court regards settlement machinery as part of justice, not a detour from it.

Choosing the right tool

The craft lies in matching the tool to the obstacle.

  • Where the obstacle is relational — poisoned communication, entrenched emotion, a relationship that must somehow continue — mediation is indicated, because the problem is the negotiation itself.
  • Where the obstacle is predictive — able negotiators, sincere but divergent views of the merits — early neutral evaluation is indicated, because the problem is information.
  • Where the parties need a binding private decision — confidentiality, specialist expertise, enforceability abroad — arbitration or expert determination is indicated, because the problem is the forum.

Nothing prevents combination. An evaluation can be followed by a mediation conducted in its light — a sequence that resolves a remarkable proportion of commercial disputes. The sophisticated party does not ask whether to use ADR. It asks which obstacle is actually holding the dispute open, and reaches for the tool built to remove it.