Lack of access to legal services in the family law context is a national problem. There is help for people in our community who are facing divorce or child custody challenges who cannot afford an attorney. Representing oneself (pro se) in most cases is neither the best option nor the only option. The hybrid ADR process of Early Neutral Evaluation—ENE—can be an efficient and inexpensive path to agreements that foster the best interests of the family.
Once the parties have begun the court process, but before extensive discovery has taken place, one or more neutral evaluators, who are experts in the parties’ subject issues, will meet with the parties and their attorneys. Each side presents its view of the issues. The expert evaluators then focus on the most critical issues and predict how the court would conclude. After the parties hear the evaluator’s opinion, they are better equipped to negotiate. There are two types of ENE that can be used in family law disputes, financial ENE and social ENE. Financial ENE addresses issues of child and spousal support, while social ENE addresses custody and parenting issues.
ENE is not for everyone. For example, ENE would not be effective if extensive discovery is needed in order to understand the issues. Another example is if one or both parties are already set in their understanding of the issues. If a party is set in his or her ways, the advisory opinion would unlikely influence that party and the ENE would not be useful. Because the ENE process is less formal than court, ENE does not prepare parties for the procedural complexities of court.
ENE is especially effective in addressing the crisis of pro se representation in family law matters. People going through divorce or custody battles often lack the knowledge to adequately represent themselves in court and have raw emotions that cloud their thinking. Yet many people struggle to use the court system without legal representation. In 2013 the American Bar Association reported that up to 90 percent of family law cases went to court with at least one party who had no legal representation. Not filing the correct forms, including discovery documents and pleadings, can be detrimental. A pro se litigant may have important points but if he or she fails to back it up with evidence, because of not understanding the rules, the results may be unjust. This is especially true when one party is represented by counsel and the other is not. The expert neutral evaluator can help make technical complex issues understandable. The evaluator helps the parties understand the strengths, weaknesses and legalities of the case.
In family disputes, emotions can cloud the issues and get in the way of understanding how a judge might rule. The neutral evaluator can give parties a dose of reality. ENE also spares parties the emotion of litigating personal issues in public. The ENE process is entirely confidential (unlike court proceedings). The evaluator’s assessment is not shared outside of the ENE proceedings. Confidentiality encourages sharing of sensitive, private family information. The parties can trust that the ENE process is neutral. ENE helps the parties focus on critical issues in a non-confrontational setting and promotes a sense of fairness. ENE can help keep those who don’t understand the law from agreeing to things that are not in their best interest or the best interest of the children. When parents settle out of court the biggest winners are the children.
Although there are other methods of resolving disputes outside of court, the ENE process holds the most promise for addressing society’s pressing legal needs regarding pro se representation of family matters. Mediation is the most common. Like mediation, ENE is an opportunity for each voice to be heard. Unlike mediation, in ENE, the neutral has experience in the subject matter. A mediator, on the other hand is a neutral party who does not need expertise of family law matters because a mediator will not usually give an opinion. The evaluator’s suggestion can help the parties move toward an agreement.
A systematic approach to ENE preparation results in better, more efficient outcomes. Parties that are prepared to share honestly and are open to a fresh understanding of the issues, can often get to the center of their dispute and negotiate a fair resolution. If the parties are unable to come up with a solution, the neutral evaluator can suggest ways to manage discovery which will keep future costs down. Finally, court is complex, intimidating, and costly. ENE may be a cost and time saving alternative to resolve disputes of one who can’t afford a lawyer but wants to be sure his or her interests are met. If the parties do go to court, they go with a better understanding of the issues.