Neutral evaluation sits between arbitration and mediation as a genre of alternate dispute resolution. Yet it is neither.
Whereas mediation tries to focus parties on their interests and to see the parties work at a settlement that takes those respective interests into consideration, neutral evaluation is fundamentally oriented towards the strengths and weaknesses of each side’s position in the dispute. Like arbitration, the evaluator will render his opinion at the end of the evaluative process but, unlike arbitration, the opinion rendered does not bind the parties.
Often this type of evaluation or feedback is done relatively early in litigation – before the parties have invested thousands of dollars in legal costs getting ready for trial. Timing is critical for, if the parties have invested massive amounts of money marshalling the case, they may well have passed beyond the point of no return where it will be impossible for them to resolve the case short of proceeding to trial because of the significant litigious investment. The process, like mediation, is very flexible as the parties can structure how they will present their cases: in a documentary fashion only, or by having key witnesses, even their experts attend, and provide the gist of their evidence first-hand. Whatever the nature of the evidentiary presentation, the evaluator typically renders an objective assessment as if he was the trier of fact deciding the case. This enables the parties to then move forward on their own and negotiate a settlement.