Early Neutral Evaluation (ENE) and mediation are “Alternative Dispute Resolution” processes designed to resolve conflict over divorce, custody, and parenting time. The difference is in the implementation. The value lies in the perceptions of the parties.
ENE is an evaluative process designed to settle cases expeditiously. The parties choose their evaluators from a list of qualified neutrals. There is limited involvement by the judge, who will explain the process to the parties and ask them to consider it. If the parties agree, the Court sets the cost for each party according to the laws, and the fee is paid to the court administrator. If an agreement is reached, the evaluators prepare the court documentation and submit it on behalf of the parties to be signed by the judge.
The evaluators can review reports and speak to teachers, mental health professionals, and family members. Based on the input of professionals and the parties’ statements, the evaluators present their professional opinions to the parties. If the parties accept their opinions, the evaluators prepare the legal documents and submit them to the judge for signature. If the evaluator’s opinion is rejected, the Court Administrator notifies the parties of a trial date.
The Upside and Downside of ENE
The downside of ENE is the lack of collaboration between the parties that allows them to find the best solutions that are in the best interests of their children. The parties might feel obligated to accept the evaluation presented to them because of the perceived position of power of the evaluators.
The upside is that ENE provides the professional expertise of two trained evaluators. Additionally, the process expedites the drafting and filing of the proper legal forms without additional cost to the parties. Another upside is a reduced fee for the process, which can be set by the judge, alleviating potential financial burdens for one or both parties.
Mediation is a collaborative process that encourages discussion between the parties to find solutions that best meet their children’s needs with the guidance of a trained conflict manager.
The Upside and Downside of Mediation
The upside is that the mediator is not court-affiliated, so there is no perceived position of power. The parties choose their mediator according to reputation, experience, training, and expertise. ENE evaluators are selected from an approved list provided by the Court.
Mediation does provide a safe forum for discussion between the parties under the guidance of a mediator specifically trained in conflict resolution. Mediation allows the parties to focus on the needs and concerns of their children and less on legalities. Multiple studies indicate that mediation results in longer-term satisfaction and less likelihood of future litigation. These are two of these case studies.
- Child Custody Mediation and Litigation: Custody, Contact, and Coparenting 12 Years After Initial Dispute Resolution, Emery, Robert E., et al. Journal of Consulting and Clinical Psychology, 69(2) 323-332, Jan. 1, 2001
- California Family Court Services Snapshot Study, Depner, Charlene E.; Cannata, Karen; Ricci, Isolina. Jan. 1, 1994
The downside is that reduced fees are usually unavailable because they are not reimbursed or paid through the courts. Also, unlike ENE, legal drafting and submission of their legal documents are the parties’ responsibility. The mediator drafts a detailed Memorandum of Understanding that the parties can bring to their attorneys, who will then draft their legal documentation.
In conclusion, each process has different advantages and disadvantages, and the two options allow people to resolve issues outside of litigation. This saves parents and the courts time and money.
