Early Neutral Evaluation
ENE is a preliminary assessment of facts, evidence and legal merits. This process is designed to serve as a basis for further and fuller negotiations, or, at the very least, help parties avoid further unnecessary stages in litigation. The parties appoint an independent person who expresses an opinion on the merits of the issues specified by them. It is a non-binding opinion but provides an unbiased evaluation on relative positions and guidance as to the likely outcome should the case be heard in court. It is a hybid form to assist dispute resolution, common in the UK, less common in Ireland.
Dispute Adjudication Boards, etc.: These provisions are well suited to larger complex projects running to longer timeframes. The “Board “ is appointed by agreement at the outset. It can comprise a single Member ( as in the highly successful LUAS project – with our own Prof. Dr. Nael Bunni ) or a board of three. Disputes which arise in the course of the works can be resolved to a short timeframe in line with the contract provisions - to smooth the flow of the longer timeframe transactional business.
A UK procedure, where the parties appoint a serving judge through their Courts Service to receive written representations from each side and to make an appraisal of the likely result if the case was to go court. The parties must agree the form and extent of submissions and whether the appraisal is to be binding or not. Irish opinions on this practice vary. As far as we know, it has not gained support in Ireland. MedRec Conciliation by experienced Mediator Arbitrators with legal and sectoral knowledge is regarded as more promising.
Med-Arb and Arb– Med
These hybrids, as the titles suggest, involve a fusion of Mediation and Arbitration skillsets. In the former, issues are narrowed through Mediation for determination by Arbitration and in the latter, visa versa for mediation of remaining unresolved issues. Neither technique has taken off in Ireland. Again MedRec Conciliation is regarded as more promising.
This is a growing and effective improvement on adjudicative Conciliation as practiced in Ireland since the mid 1990’s, mainly in agreements involving Construction - Public and Private. MedRec is a consensual process comprising a hybrid of Classic Facilitative Mediation technique – with the availability of a Written Reasoned Recommendation if the Mediation Phase does not result in complete Settlement. The Primary objective is always settlement. However in the 30% or so cases where resolution of all issues does not emerge through the Mediation Phase, the good work of the parties and the Mediator in that Mediation phase is not lost.
It is harnessed to address remaining unresolved issues by moving on to the second Phase: - Reasoned Recommendation. A Recommendation is solely based on shared and common case information. Earlier information disclosed in confidence to the Mediator is not used as it is priviledged. The skillsets required of a MedRec Conciliator are those of a Facilitative Mediator primarily. If, by consent, the Mediator/ Conciliator moves to the second phase, her/his skillsets as an Arbitrator come into play - particularly the ability to ignore priviledged information and to write an easily understood written Reasoned Recommendation – indentifying the matters agreed in the Mediation Phase and providing reasoned Opinion on the remaining unresolved issues.
Such Reasoned Written Recommendations are based on the Legal rights & obligations of the parties solely. The Parties have a period of time to consider the Recommendation and to reject it, if any party should so wish. The period of time is specified in the Dispute resolution clause - generally ten working days. If not rejected in time, the Recommendation becomes binding as a matter of contract.
Project MedRec Conciliator is an emerging technique currently under discussion in Irish circles as a natural progression to Dispute Boards and Dispute Adjudication Boards.