Early Neutral Evaluation

Early neutral evaluation is a dispute resolution process that has gained substantial momentum in the last 15 years. The parties, and lawyers, meet with an expert in a confidential, non-binding process designed to facilitate a final agreement. That session takes place early in the case, before litigants become entrenched in their positions.

Divorce often requires a series of meetings to determine custody, support, and the division of property and assets. There are several meetings that take place before you get a final divorce decree, even if you opt for an alternative dispute resolution process like mediation. The impression that you make at these meetings can have a strong impact on your results. Superficial decisions, like the clothes you wear or your posture, can influence your ability to negotiate from a place of power.

Review this list of dos and don’ts for dressing for mediation:

DON’T Take Your Appearance Lightly

Per Psychological Science, “a series of experiments by Princeton psychologists Janine Willis and Alexander Todorov reveal that all it takes is a tenth of a second to form an impression of a stranger from their face, and that longer exposures don’t significantly alter those impressions (although they might boost your confidence in your judgments).”

In a mediation meeting, you want to communicate that you’re organized, responsible and capable. This means clean hair, light makeup for women, and (generally) a clean-shaven appearance for men. Your clothing should be neat and unwrinkled.

DO Go Business Casual

Mediation is a business meeting. You and your spouse are negotiating important matters about your children, your finances and your life. Dress business casual to set the tone that you are peaceful and effective. Show up looking like your opinion matters.

DON’T Skip Common Sense

Avoid arriving late, coming to the meeting after drinking or working out, or dressing provocatively (e.g. to make your ex jealous). Don’t let your clothes or your overall appearance or demeanor distract from the work at hand.

DO Come Prepared

Consult with an experienced Minnesota divorce attorney before the mediation. The clearer you understand the process—and what you want from it—the easier it will be to behave naturally. Our qualified team can help you work through the process to get the results you need. Please get in touch today for a confidential consultation.

More than 95% of the cases we handle settle short of trial. When custody issues are involved, many of our clients participate in a process known as social early neutral evaluation – an SENE.

In a social early neutral evaluation, the lawyers and clients will meet with a pair of evaluators. These individuals are usually social workers, custody evaluators, or experienced family law practitioners. The team will consist of one male and one female, to avoid the perception of gender bias.

Most social early neutral evaluation sessions are approximately three hours long.

During the first hour, the parties themselves do most of the talking. The evaluators want to hear from each side. Issues such as physical custody, legal custody and parenting time are discussed. The role of the lawyers during this part of the process is typically rather limited, as the evaluators want to absorb information directly from the litigants.

During the second hour, the evaluators do the hard work. Once the evaluators have heard from the parties, and asked all of the questions that need answering, they will break and discuss the matter privately. This part of the ENE typically takes about 30 minutes. During this time, the parties are usually separated.

Next the parties, the lawyers, and the evaluators come back together, and the opinions of the evaluators are expressed. The opinions of evaluators are nonbinding, but provide some insight into what two qualified individuals believe the likely outcome will be if the matter proceeds to trial. The opinions of the evaluators will not become known to the judge.

Once evaluators have provided their thoughts, the third hour of the session occurs. During this third hour, the parties separate, and negotiation begins. Some, or all, of the relevant issues may be discussed, such holiday schedules, routine access schedules, summer vacation time and non-school days.

About 75% of the time, a settlement will be reached. If the settlement is reached, the terms of the settlement are put into a memo, which is then forwarded to the judge. Assuming the court approves of the agreement, the agreement will be incorporated into the final divorce decree.

Because of the success of this type of forum, many counties have now adopted the social early neutral evaluation model. Some (like Anoka County) call it a custody parenting time early neutral evaluation, or CPENE, where Hennepin County uses the SENE label.

More and more Minnesota counties are providing divorce litigants with an opportunity to resolve their financial issues through a process known as “Financial Early Neutral Evaluation.” Settlement success rates in the FENE model are astonishing – as high as 75% in some jurisdictions.

An FENE involves a half-day session (or two, or three, or four) with a court-appointed neutral. This neutral typically is an experienced family law attorney, or a CPA familiar with the financial issues involved in a divorce. The parties, and their lawyers, sit down with the evaluator very early in the case – in an effort to catch people before they become too embroiled in conflict, or stuck in their position.

The process begins with the exchange of information, to ensure that there has been a full and fair disclosure of all income, assets and liabilities. A balance sheet is often created, which defines the universe of assets and debts, attributes value, provides a basis for the value, carves out any non-marital claims, and then allocates the relevant item to one of the parties. Once all allocated assets and debts are added up for each litigant, the cumulative value for each should be equal. This is typically the least controversial portion of the FENE, but can take some time.

The more controversial portion of the FENE involves the issue of spousal maintenance. With the assistance of the evaluator, the income and budgets of the parties will be scrutinized. A range of possible outcomes may be discussed, and recommendations may be made by the evaluator concerning the amount, and duration, of alimony in the event that the judge is left to decide the issue. Settlement discussions begin with that opinion as a backdrop.

Why does FENE work so often? A few points:

  • The parties have direct conversation with one another, and the evaluator, in a natural way. A far cry from the robotic “question and answer” method of introducing evidence during a trial.
  • The rules of evidence go out the window at an FENE. Any issue is up for discussion, empowering participants to voice their real-life concerns.
  • Emotions may be taken into account at an FENE. Issues concerning “fairness” and “hurt” may be addressed as part of the process. Frankly, the law of “no-fault divorce” precludes alot of this in the courtroom.
  • The process can be therapeutic. People feel like they can speak their mind, and they are listened to. Sometimes all a party needs is to be heard by someone.
  • Spouses have to look each in the eye as they discuss the issues. Very different from sitting 25 feet apart in the courtroom, facing front.
  • There is a real sense that the parties can “get it done” during the process. Litigants believe that closure has real value, and may be worth a compromise.
  • The process is a respectful one. Most evaluators know how to keep tempers from flaring.
  • The evaluators, not the lawyers, control the agenda. Both parties feel they are on a level playing field.
  • Opinions matter. Litigants afford substantial weight to the perspective of the evaluators. They know the evaluator has no stake in the outcome, and the experience to back up their opinions.
  • The neutrals are forced to “show their work.” What I mean is that the parties are literally walked through each of the elements of the case, together, and hear the same thing at the same time. They see how the opinions of the evaluator are created right before their eyes, giving them more credibility.
  • The surroundings are comfortable. There are no robes, no gavels, no court reporters, and no security. Just people sitting around a table, with their favorite beverage, talking.

As time goes on, we suspect the FENE process will gain statewide acceptance. Most of the counties in the Twin Cities metro area have adopted such a program. Why wouldn’t they? With a 3/4 reduction in divorce litigation, everybody wins….except those lawyers whose practice model is based on “dog fight” mentality. But, who’s feeling sorry for them anyway?

Following Hennepin County’s lead, and a statewide trend, the Anoka County District Court has implemented a pilot early neutral evaluation program for divorcing couples. The evaluations focus on the two key issues involved in a dissolution: custody of children and economics.

Couples can divert from the court system and meet with qualified “neutrals” who will facilitate settlement discussions and (unlike traditional mediation) offer opinions about the merits of a party’s position. If successful, the process can save litigants months of emotionally-charged litigation and tens of thousands of dollars in legal fees and costs.

Five Anoka County judges have agreed to participate in the program, including Judge Sharon Hall who says that the early neutral process will allow litigants to “keep some control over their situation.” The family law section of the Anoka County Bar Association has been a driving force behind the program, which provides litigants with yet another alternative to traditional litigation.

One big difference between the program in Anoka and Hennepin County involves funding. While Hennepin County covers the bulk of the costs for litigants, the Anoka County program has a very limited budget. Work is done by local lawyers, not county employees, on a sliding fee scale.