Alternative Dispute Resolution (ADR) is used widely in all areas of law. In family and divorce ADR methods like mediation and arbitration are commonly used to find solutions to the most bitterly contested, private matters without the need for couples to face the ordeal and financial risk of going to court. Private Family Dispute Resolution hearings (PFDRs) and Early Neutral Evaluations (ENEs) are also used as a way to settle disputes, and here we look at how PFDRs and ENEs work in practice. Note that PFDR and ENE essentially refer to the same process. ENE is the term more frequently used when we are talking about a form of ADR relating to disputes about children.
Brookman team memebers are members of Resolution which encourages the use of all forms of ADR to help reach agreed settlements in matters relating to finances and children following a family break up.
Why Use Early Neutral Evaluation?
In 2021 the Centre for Effective Dispute Resolution (the CEDR) estimated that 38% more mediation cases were being handled in 2020 than in 2018. We’ve also seen how arbitration can be used as a reliable way to deal with family law disputes. ENE/PFDR is another option for couples who wish to find a negotiated settlement. Reasons you may wish to consider ENE/PFDR include:
- Delays in the court system mean getting a hearing date and finalising all outstanding issues can take over a year. By engaging meaningfully in ENE/PFDR you can expect to resolve many issues more speedily and at less cost
- The procedure for financial remedy hearings in court (introduced in January 2022) obliges parties to undertake a great deal of preparation ahead of the first court appointment. We believe this encourages couples to adopt a more collaborative approach generally at an early stage and can make the decision to resort to ADR methods including ENE/PFDR easier
- Against the backdrop of the Covid19 pandemic individuals appear more willing to take control of matters themselves, sorting contentious issues out without between them without relying on the overstretched court system to handle every issue on their case. . This applies across the board, in commercial and civil matters as well as family law. ENE/PFDR is a non-binding form of ADR and presents a great opportunity to a divorcing couple to isolate areas of dispute and tackle them head on in an informal way
How Does Early Neutral Evaluation Work?
ENE/PFDR is a way of resolving legal disputes of any kind. Widely used in the commercial legal sphere to save time and money, in the family law arena it has the added advantage of removing some of the heat from highly personal disputes. ENE/PFDRs are private and can be used to resolve disagreement about both child arrangements as well as financial matters.
Here’s how ENE and PFDR hearings usually work:
- The parties choose an evaluator – The ENE/PFDR procedure is above all consensual. And it’s up to the parties to choose an appropriate evaluator, usually a senior barrister or solicitor or on occasion a retired judge. It’s important to appoint an evaluator who has the necessary technical expertise in the legal issues to be evaluated
- Each side agrees on how the ENE/PFDR will run – setting out the evaluator’s role and the responsibilities of the parties and detailing the procedures for the ENE, for example will there be a hearing or will the evaluator reach a decision based solely on documents submitted by the parties?
- If there’s a hearing both parties will usually present a case summary to the evaluator
- The evaluator reviews the case
- If there’s a hearing – (the case in most family-related ENE/PFDRs – both sides attend with their lawyers. The evaluator then makes an evaluation and explains to the parties – on the basis of the evidence he or she has considered – how a judge might decide the issues (referring to the usual factors in contained in the Matrimonial Causes Act, 1973 )
- When they have received an evaluation it’s up to the parties to decide how to proceed. The evaluation is not like a court ruing that binds the parties. ENE/ PFDR hearings are private and held independently of the courts. If parties accept the evaluation then it will form the basis of a settlement. If they don’t, they can fall back on the legal system to resolve matters.
Comment
The whole point of ENE/PFDRs is to give the parties a clear idea of what a court might decide when the Matrimonial Causes factors are applied to the specifics of their own particular case. In this way the evaluation can divest parties of unrealistic expectations and promote a comprehensive settlement. On the other hand of course a party that receives a favourable assessment of his or her position may be encouraged to seek more in terms of a settlement than he or she may have done before the ENE/PFDR. Overall the private, non confrontational nature of ENE/PFDRs as well as the fact that they can be carried out quickly compared to the length of time needed to wait for a court hearing make ENEs a sensible option for many divorcing couples.