I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.
However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar. Period.
In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”. I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time). Here they are (and I’ve taken some slight editorial license on the emphasis):
“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose. This structural ‘baggage’, like everything else in life, always has a plus and minus to it. For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …
The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …
The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions. This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …
Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”
What is “Early Neutral Evaluation” in South Carolina, and specifically in the South Carolina Family Court?
SCADR Rule 14 states the following:
Description of Early Neutral Evaluation (ENE)
In early neutral evaluations, the parties and their counsel, in a confidential session, make compact presentations of their claims and defenses, including applicable evidence as developed at the time of the evaluation, and receive a non-binding evaluation of the matters in controversy by an evaluator. The evaluator also assists in identifying areas of agreement, offers case planning suggestions and assists the parties in settlement discussions.” (Emphasis added)
On the family court side, early neutral evaluation (ENE) provides party-litigants and their attorneys with a process for “test-driving” their respective positions before a selected ENE “evaluator” and to receive, among other things, “in a family court case…the likely result of a trial of all issues” (SCADR Rule 15). The ENE process is also an ADR hybrid which can combine certain elements both of mediation (for example, private caucusing with the parties, confidentiality, informal presentations, settlement objectives) and non-binding arbitration (e.g., the parties and attorneys shall receive a “non-binding evaluation of the matters in controversy by an evaluator”…in other words, an evaluation which measures and grades the relative strengths and weaknesses of each party’s case).
How Early Neutral Evaluation can be both a significant benefit to the South Carolina family law attorney and a financial benefit for the clients.
As noted above, ADR Rule 14 states, in part, that the “evaluator also…offers case planning suggestions and assists the parties in settlement discussions”. In this regard, your ENE evaluator can assist you not only with making strategic, trial-related suggestions and recommendations, but also working with your client and you to assess the “strengths and weaknesses” of your case, and assist you in crafting meaningful, realistic settlement options and proposals. It should be clearly understood that both this aspect of ENE – and the evaluator’s work in managing your client’s litigation expectations – are not mediation-related, but rather fall within the “case planning suggestions” contained within SCADR Rule 14 (it should also be noted that SCADR Rule 15(a)(6) expressly authorizes the evaluator to “(A)ssist the parties … to position the case for disposition by other means”).
And again, if the attorney is having difficulties with a client’s unrealistic litigation demands or “outcome expectations”, your ENE evaluator can be expected to carefully, but objectively, work through all of those concerns and “client expectations” to assist the attorney and his/her client in crafting a reasonable outcome.
Furthermore, one of your ENE evaluator’s responsibilities is to provide the attorney and his/her client with a realistic, but candid, assessment of the potential litigation costs which shall be involved in the client’s litigation process [see SCADR Rule 15(a)(7)].
What are the services we are prepared to offer you in accordance and compliance with Early Neutral Evaluation in the South Carolina Family Court system?
We have created a professional group comprised solely of retired South Carolina Family Court judges – “Early Neutral Evaluation Services”.
If you choose to engage our services, then we will provide you with two members of our group who, together in tandem, will come to your office, and/or to any other location mutually arranged by the attorney(s) and us, to meet with your client(s) and you in an intensive work session which will be structured to provide you with the following analysis, objectives, and anticipated results:
(1) If you have engaged our services after the family court litigation has been commenced, then we will, among other things, (a) identify and evaluate our considered “weaknesses” or “deficiencies” in your case and offer our opinions for addressing, rectifying, and strengthening those deficiencies; (b) provide you with an array of suggested settlement options; and (c) provide the attorney with a “litigation outline” which will meld or blend the specific facts of your case with the statutory and case law supporting your fact pattern.
(2) If there are attorneys representing both parties (or multiple parties) who would prefer to engage our ENE services in a mediation-style process, then we will be prepared to conduct that mediation in accordance with the South Carolina Alternative Dispute Resolution Rules (SCADR) [mediation may be conducted either at the pre-litigation stage or the post-commencement litigation stage].
(3) If you have engaged our services prior to the commencement of family court litigation, then we will provide your client and you with a pre-litigation evaluation of a potential array of family court “outcomes”, using your fact pattern, while identifying and addressing your case’s potential problem areas, and also concurrently assisting your client and you in moving forward with a resolution/settlement of your case.
What are the fees for our ENE services?
Although you will be engaging the services of two of our evaluators, you will be billed at the total rate of $250 per hour. There will be no cost either for our travel time to and from your office, nor for any “mileage rate”, nor for any “pre-evaluation preparation” (i.e., for our reviewing any materials which we may request in advance of the evaluation), nor for any post-conference preparation of an ENE memorandum or litigation outline. Stated otherwise, you will be billed for the hours invested by us in our actual “in-office” conferences with you (or with your client and you).
There shall be a minimum of $1,000 which shall be due and payable at the beginning of our evaluation (this minimum is payable for the range of hours we spend at the ENE conference anywhere from 1 hour up to 4 hours, and the fee for all hours after 4 hours of time will be billed at the $250 per hour rate). To make certain that your client is charged only for our actual ENE conference, we shall have that client’s attorney sign a separate short form which states the “ENE Conference Start Time” and “ENE Conference End Time”. Without exception, payment in full will be due at the conclusion of this ENE conference.
What is the availability of our ENE services?
Depending upon our schedule and availability, we shall be prepared to meet in an ENE conference with your clients and you during any day of the week, including, if necessary, Saturdays and Sundays.
Will there be any documents which are required to be executed prior to the scheduled Early Neutral Evaluation?
Yes. Once you have decided to use our ENE services your client and you shall be required to execute a Letter of Engagement which is intended to confirm that you have formally engaged our services and that you acknowledge our fees for this service.
Additionally, depending on whether you are requesting our ENE services for your pre-commencement of litigation or post-commencement of litigation purposes, we shall send you in a separate email a list of specific documents which we would want to review in advance of the ENE conference at your office.
I wanted to close this blog post by thanking the reader for taking her/his valuable time to read it; and I will hope you will find it instructive and beneficial, and that perhaps in time (sooner than later) you, too, will embrace early neutral evaluation as your “go to” ADR alternative for dispute resolution.
And, as always, good luck out there.