Michael Bartlet Reflects on the Benefits of ENE and its Relationship with Mediation

Early Neutral Evaluation (ENE) was pioneered by judges in the US District Court for the Northern District of California. It gives parties an early, reality-based view of the strengths and weaknesses of their positions on both fact and law. The evaluator offers a non-binding indication of how the case might be decided at trial.

ENE can be cheaper than mediation where both sides want a robust, expert view and are willing to engage with it. Even where it does not produce an immediate settlement, it typically sharpens the issues, reduces wasted cost, and promotes a more efficient use of court resources.

What ENE offers

A court-directed ENE is particularly valuable where the parties have not themselves sought a hard-nosed assessment. Through structured questioning of the parties’ arguments and evidence – and, where appropriate, a provisional indication of likely outcomes – ENE can push negotiations back on track and help parties reach settlement. ENE is not mediation but a form of dispute resolution hearing.

ENE in practice in England and Wales

Family law has long used an evaluative step. Financial Dispute Resolution (FDR) hearings are now a routine (and, in financial remedy applications, compulsory) stage of proceedings. After initial directions, parties and advisers attend before a district judge, who gives a without-prejudice, non-binding indication of how the case is likely to be approached at final hearing, often easing tension and narrowing issues.

Employment tribunals have also developed evaluative, judge-led processes. Regional Employment Tribunal Judge Benjimin Burgher has used “Dispute Resolution Appointments” to attempt resolution before a contested hearing. These appointments are non-consensual, confidential and evaluative; if they do not succeed, the case proceeds before a different judge. Judicial ENE remains without prejudice unless privilege is waived, and non-binding unless the parties agree otherwise.

The procedural foundation

In civil proceedings, ENE can be ordered under the court’s general case-management powers (CPR 3.1(2)(m)): the court may take “any other step … for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.”

Practice varies by division. In the Chancery Division, a judge’s opinion may be provided informally; in the King’s Bench Division, the judge can determine the form of opinion and the appropriate time estimate (sometimes exceeding half a day).

In Lomax v Lomax (2019) the Court of Appeal confirmed that the court has power to order ENE even without the parties’ consent. Used early, ENE can be a powerful catalyst: it reveals how a judge may analyse the law and the evidence, and can create the momentum needed to move the parties into the settlement zone. Including a Dispute Resolution Hearings as a mandatory step in civil procedure could lead to a significant reduction in legal costs of litigation and a more strategic use of judicial time.

A renewed push

Sam Townend KC, former Chair of the Bar Council (2024), has suggested that specialist Bar and solicitor associations should re-examine ENE, learn from the family courts, and consider whether it can “provide a cheaper and potentially effective means of … getting both parties into the settlement zone and avoiding the costs and time associated with a final trial.”

That call feels timely. In some cases, ENE – focused squarely on legal issues and factual disputes – may be more cost-effective than facilitative mediation, particularly where there is little scope to “expand the size of the cake” through creative deal-making.

Where judicial ENE is not feasible, independent ENE may fill the gap. NHS Resolution (formerly the NHS Litigation Authority) has begun using ENE in clinical negligence claims and has awarded contracts for the provision of ENEs to CEDR (Centre for Effective Dispute Resolution), Global Mediation and Trust Mediation.

Why is ENE still under-used?

Despite the CPR route to a “gold standard” judicial ENE, it may be rare in practice. Judges are under intense pressure and ENE can require significant pre-reading. In a common-law culture that prizes adjudication, it can be difficult to carve out time to pre-empt future trials when current lists are already congested.

There may also be professional and commercial friction:

•  For solicitors, ENE may sit uneasily with some litigation business models and can be perceived (rightly or wrongly) as a loss of control.

•  There may be a reluctance to expose a ‘theory of the case’ to robust testing in front of the client at an early stage.

•  For barristers, the instinct to build the strongest case for adjudication is understandable. Where compromise is in the client’s interests, a facilitative mediation may feel more comfortable because counsel can manage risk and messaging more closely.

Mediation remains 3^rd Party facilitated negotiation and the mediator risks compromising their role if they stray into ‘quasi-adjudication’.

Facilitative and evaluative mediation

Some mediation providers are experiencing a call from parties and their representatives for a ‘more evaluative style’ of mediation. While it is clearly the role of a mediator to enable the parties to evaluate their claims, positions and interests in the ‘shadow of the law’ and the court, this approach to evaluation should never cross the Rubicon of a mediator giving legal advice.

“[Mediation has the] capacity to reorient parties toward each other not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions to each other.”

Mediation remains 3^rd Party facilitated negotiation and the mediator risks compromising their role if they stray into ‘quasi-adjudication’. As American legal philosopher Lon Fuller aptly defined ‘the central quality of mediation’: it is its “capacity to re-orientate the parties towards each other, not by imposing rules on them, but by helping them achieve a new and shared perception of their relationship, a perception that will redirect their attitude towards one another.”

Conclusion

Rather than blurring the line between mediation and adjudication through increasingly evaluative mediation models, ENE offers a clean, court-centred way to pre-empt unnecessary, protracted litigation – and the stress and cost that comes with it. ENE will not suit every dispute. But where the real sticking points are legal and evidential, and there is limited scope for creative value-building, early neutral analysis (judicial or independent) can save time, reduce cost, and spare parties the mental burden of preparing for trial.