Early Neutral Evaluation (ENE) and mediation are “Alternative Dispute Resolution” but they have some major differences. Both processes are designed to resolve the conflict but in different ways. An ENE takes place within the court processes and has some involvement of the judge (the Court) within the process itself, while mediation is a process that does not involve the judge until the parties bring their agreement to the Court for finalization. There are differences in how each process is done.
Mediation is a collaborative conflict resolution process done where both parties hire a mediator to help them discuss concerns and look at ways to solve disputes to bring about a mutually acceptable agreement. A memorandum of agreement is drafted, and the parties file the proper documents with the court administrator to be signed by the Court.
An ENE process hires two neutral evaluators. The judge instructs the parties on how the process works. Attorneys and the evaluators are present. Each party has a designated time to say what they feel is important at the beginning of the process. The evaluators can consult with other professionals that may have important information to help them understand the case. These might include childcare providers, teachers, or mental health professionals, for example.
The evaluators will privately discuss what they feel should occur to resolve your case and will give an opinion as to how they feel a judge might rule and why. The parties then discuss the suggestions and opinions provided and there may be other negotiations between the parties and your attorneys. If a decision is reached, it is put into a proposed court order and presented to the judge. The parties have the right to change their mind (the same as parties can change their minds after a mediation process) until the judge signs the stipulated agreement making it a binding order upon both parties.
Weighing Out the Advantages and Disadvantages of ENE and Mediation
Mediation opens the door to a more complete discussion and the less formal process allows parties more discretion over their agreements without feeling pressured into agreement. Mediation encourages discussion between the parties to address underlying issues that may be increasing conflict between parents because of misunderstandings. Mediation also seeks long-term resolutions by improving the ability of parents to communicate and resolve future conflict using the mediation model and a formal parenting plan. Mediation has a high score with parties by reaching satisfactory agreements that work for them and and their children.
ENE is designed to settle cases and resolve only the legal issues. This can be helpful in cases where parties are unable to resolve the legal issues of custody and financial assets of divorce. The heavier hand of professional opinions can result in settlement without trial. It is considerably more expensive than mediation, but it is far less expensive than a trial.
Parties can refuse ENE but will likely be requested to enter mediation. It is important that both parties weigh out both alternatives and decide which type of alternative dispute resolution process is most affordable and which process will be the most effective in their situation.
There is a difference in payment of fees between ENE and mediation. Because the ENE process involves the courts, hourly fees for the neutrals are set by the judge. The fee might be waived or reduced for low income individuals. The parties pay their attorneys’ hourly fees. This could make the process $600 per hour or more.
Mediation does not involve judges and it hires one trained third-party neutral to work with both parties in a mediation process. Because it is outside of the courts, fees are set by the mediator. Attorneys are not usually present in a mediation process unless there is a special request. Mediation can be more flexible with hourly fees, because fees are not set by a judge. On the other hand, ENE fees are formally set by the judge so there is less flexibility. With mediation, fees are equally split between the parties, unless the parties agree upon a different percentage in fees.
Regardless of the process you choose, be prepared. If you are entering an ENE process, be prepared to verbalize your position within a 20-minute time period. If you are entering mediation, be sure you have all factual data needed for discussion and speak to an attorney prior to mediation if you have legal question.