When two parties have gotten wrapped up in a dispute and one party would like to resolve the situation without litigation, but the other is resistant, it may be beneficial to try using case evaluation.
Case evaluation will often reevaluate the stubborn party’s position and help wrap up the case in a way that can make both parties happy.
Understanding the case evaluation can help determine whether a case is a good candidate for the process. While it is not a guarantee, it is an alternative dispute resolution process. It can resolve the dispute outside of a trial and help the parties move forward. Suppose one is trapped in a dispute or litigation that is not moving forward. In that case, case evaluation may be an excellent way to push the case toward settlement rather than unnecessary litigation.
Defining Case Evaluation:
Case evaluation is an intervention process for cases either before they are filed or shortly after. The process may be completed based on an agreement of the parties or by the order of a judge. In a case evaluation, a neutral party not involved in the case looks over the case shortly after it is filed and evaluates it for each party’s strengths, weaknesses, and the possibility of success.
The neutral is usually an attorney that understands the subject matter and can make an unbiased evaluation of the case for the parties, balancing their interests and the court’s interests to settle and clear up backlogged cases. Depending on the state and parties’ wishes, the evaluation may happen either by written submissions or by oral presentation to the neutral.
After reviewing the case, the neutral will evaluate each side’s strengths while also highlighting and discussing the weaknesses the case has. This presentation aims to help the parties decide the likelihood of success should they continue.
Common characteristics of the case evaluation include:
- Confidential: The evaluation of the case between the neutral and the parties will usually be confidential. The neutral will not share the discussions that take place within the evaluation with the judge or anyone else apart from the parties. However, if necessary, the parties should discuss this between themselves and the neutral.
- Neutrality: The process will be neutral. The evaluator will approach the parties’ dispute without bias. Neither party should have sway over the neutral, and they should not take sides but merely present the strengths and weaknesses of each case with their prediction for the outcome of the case. This helps to ensure that the parties’ positions are treated and considered fairly.
- Opinion: The neutral will present an opinion to the parties. This will happen after the parties have presented their evidence and the neutral has had a chance to review everything. This opinion can help guide the parties in their decisions moving forward.
- Discussion: The parties and the neutral will usually meet to discuss the case or the opinion presented by the neutral. This discussion will usually include the neutral sharing their thoughts on the merits of the case, and the parties consider the case as well as potential settlement agreements.
- Non-Binding: The evaluator cannot decide the case or force the parties to agree or follow the evaluator’s decision. The process exists only to provide the parties with a chance to hear about the potential outcome of their case, reevaluate their positions, or discuss a settlement. The opinion created by the evaluator is not binding. It cannot influence the case’s outcome, which is why it should not be shared with anyone involved.
- Collaborative: Once the neutral provides their evaluation of the case, the parties can collaborate and decide whether a settlement may be acceptable. The parties may be more willing to work together after they have a better grasp on their case. This is not always the case after a neutral present their opinion. Still, it can be a good starting point for further discussions.
This is a brief overview of the more formal process that many courts have implemented to help clear backlogged calendars. In addition, there are a variety of ways that parties may choose to participate in case evaluation.
It is becoming more popular for a single party to meet with an evaluator and present their case and examine the strengths and weaknesses of their case, along with the other party’s defenses. While this is not as thorough of a process, it can help a party determine if the litigation is worth the risk.
The Role of the Neutral:
To understand the process, even more, it can be helpful to examine the role of the neutral. Within a case evaluation, the neutral, or panel of neutrals, will take all of the evidence and arguments presented and determine the strengths and weaknesses of each party’s position while predicting the outcome of a trial on the case.
The neutral is not there to help the parties decide about a settlement or encourage them to do so. Instead, the neutral is there merely to evaluate the case and show the parties the path the case may take moving forward.
Reasons to Use Case Evaluation:
The reasons that the parties may choose case evaluation will differ with each case. Still, some common themes run throughout the cases that end up in front of an evaluator. If any of these reasons ring true for a case, the parties may benefit from the neutral evaluation and the insight it brings. Some common reasons to send a case to evaluation include:
- They think the case could settle. Courts and the legal system are often incredibly overwhelmed by the number of cases that need to be tried at any given time. This is why many judges will encourage settlement. Suppose a case is filed and a judge sees the potential for settlement early. In that case, they may recommend to neutral evaluation to encourage the parties to move towards a settlement. Additionally, the parties may see the benefit in having an evolution for settlement purposes.
- The parties need an unbiased and accurate opinion of the case. Parties to a legal dispute often see their case in a very optimistic way. This is normal and often necessary for parties to recover what they are entitled to. However, optimism can occasionally drive the parties to have unrealistic expectations for the case, and it may stop any fruitful conversation or accurate work. The evaluator may be able to reign in the parties’ expectations and paint an accurate picture of the possible results of the trial may be. This could lead to settlement discussions or a trial with fewer disputes than initially stated.
- There is a stubborn party. Evaluators will often see one party with a clear path forward and another party that believes they are entitled to more than they are, slowing resolution. In a similar fashion to the realistic picture above, The neutral may help the stubborn party come to terms with the potential outcome and reach an agreement that seemed impossible.
- The parties contracted for it. Contracting parties may agree to submit any disputes that arise to a neutral before a case is filed. This clause can be included in a contract and enforced when a contractual dispute arises. This requires that the parties submit a good faith and accurate representation to the neutral so that the neutral has the most accurate picture of the dispute before they present their evaluation. This can stop disputes from reaching litigation in the first place.
- The parties agree to submit it post-dispute. Parties may also agree to submit the case to early neutral evaluation after a dispute arises. All parties must agree to submit their dispute to the evaluator, meaning that it cannot be forced unilaterally. Again, the parties must present a good-faith representation of their case so the neutral can make an accurate evaluation.
If a case needs a set of outside eyes looking at the evidence to help the parties fully understand the outcomes and possible weaknesses a case may have, it is always a good idea to have that third-party evaluator look at it.
While most civil cases would benefit from some form of neutral evaluation, certain cases may be particularly successful after undergoing case evaluation:
- Child Custody: Parties seeking to establish or modify child custody orders may benefit from case evaluation because an unbiased evaluation of the positions can assist this process. The parties are often strongly fueled by emotion, and a neutral’s opinion can help provide an accurate portrayal of the case.
- Divorce: Similar to child custody cases, case evaluation, can often help the parties see an accurate picture of what the court would award. And may help them to protect their interests rather than relying on their emotion and anger to drive them forward.
- Contracts: Contracts can include an agreement to submit a dispute to early neutral evaluation, as mentioned above. Contract cases often have a step-by-step evaluation of case, so having a neutral evaluate the case early on can save time for the case and provide clarity about the strength of the claim.
While these types of cases are often particularly suited for evaluation as a whole, that does not mean that every child support or family law case will undergo evaluation.
Additionally, it is not an exclusive list. Many cases will benefit from an evaluation, even if they do not fit in one of these categories.
Advantages of Case Evaluation:
There are several important advantages of case evaluation. These include:
- Expertise: The neutral can be appointed or chosen based on their knowledge about the subject matter of the dispute. This can both ensure the parties are confident that the neutral is competent and that the evaluation is fair and understanding of any unique challenges.
- Focus: There are often many aspects of a case that can distract the parties from the most critical parts of the case. Emotions often drive the parties to focus on more minor points of lesser importance. An evaluation can help the parties adjust their focus to the most critical aspects of their case, which can provide new insights and a more straightforward path to success in the case.
- Confidential: Because the entire process is confidential, it allows the parties to speak freely, knowing that nothing will be shared publicly or in court. This can help encourage settlement and help the parties feel like their entire story was presented.
- Neutral: The neutral evaluator’s opinion can help the parties feel that their case has real value. It also helps them understand the value of the other party’s case.
- Voluntary: Because the parties are choosing to participate in the evaluation and choosing to settle or continue in the case after, the parties are often more forthcoming in the process and can see value in the chance to learn more about their case.
- Chance to Settle Early: Case evaluation gives the parties a chance to come together and hear the strengths and weaknesses of both cases. Then have the opportunity to discuss a settlement before the parties spend too much on attorneys and court fees.
Case evaluation can help the parties gain a deeper understanding of their position and the likely outcome of the case. Doing so can bring clarity to the parties, even if an agreement is not reached.
Disadvantages of Case Evaluation:
There are also disadvantages to case evaluation that can impact the accessibility or necessity of the process and must be considered. These include:
- Cost: Because the process is voluntary, there is no guarantee that the case will be resolved after the evaluation. The evaluation may add costs on top of other litigation costs.
- Stress: When the process does not provide a settlement or clarification for the parties, it can feel like wasted time and stress for something that was not fruitful.
- Refusal: Sometimes, a party will hear that their case is not strong but still refuse to settle it. This can drag out the process of resolving the case and keep the parties in a state of limbo where they know what will likely happen but cannot act on it.
Case evaluation can be beneficial in many cases to clarify and understand the outcome and help encourage settlement between the parties. For many, case evaluation is not an initial idea when alternative dispute resolution is necessary. Still, it may help encourage the parties to find an outcome that benefits them and moves the case forward.