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Recent amendments to the ADR Rules – “Early Neutral Evaluation”

From guest blogger: Barry W. Knobel of Knobel Mediation Services

If you have not had the time to review them, on April 30, 2012, we received notification from the South Carolina Supreme Court regarding formal amendments (which are now in effect) to the South Carolina Court-Annexed Alternative Dispute Resolution Rules. You can access the ADR Rules through the Judicial Department’s website – www.sccourts.org. – under the “Quick Links – Court Rules” menu.

Despite my best efforts to try and keep currently informed of “all things family court”, I typically find myself in the “last-to-know” category, and so it is with these Rules amendments – and specifically the one entitled “Early Neutral Evaluation” (ENE), which I consider to be perhaps the most significant latest addition to the ADR Rules.

After reading the ENE provisions (referred to in ADR Rules 2 (definitions), 14, 15, 16 and 17), I contacted Joan Brown, the excellent ADR liaison with the South Carolina Bar, to inquire as to the genesis of this specific addition, and Joan quickly responded that it had been a recommendation from the South Carolina Commission on ADR (which of course makes perfect sense). What puzzled me, and it remains something of an enigma to me, was the reason and purpose for creating this third ADR track (the others being mediation and non-binding arbitration).

As I understand this Rule, at least on the family court side, ENE will now provide party-litigants and their attorneys with a process for “test-driving” their respective positions before a selected ENE “evaluator” and receive, among other things, “in a family court case…the likely result of a trial of all issues”. It appears that the ENE process is an ADR hybrid which combines certain elements both of mediation (for example, private caucusing with the parties, confidentiality, informal presentations, settlement objectives) and non-binding arbitration (e.g., the parties and attorneys shall receive a “non-binding evaluation of the matters in controversy by an evaluator”…in other words, an evaluation which measures and grades the relative strengths and weaknesses of each party’s case).

There were two specific provisions of the ENE provisions which were especially puzzling:

(1) ADR Rule 14 states, in part, that the “evaluator also…offers case planning suggestions…”. Although I don’t believe the actual intent of this language is to enable the evaluator, in a private, confidential caucus with the parties, to make strategic, trial-related suggestions and recommendations (in other words, the evaluator giving independent legal advice), that could be a logical inference from a reading of that clause.

(2) The second relates to a requirement for the evaluator, in ADR Rule 17, to “file with the clerk of court proof of ADR on a form approved by the Supreme Court or its designee”. In that, on the family court side, we currently have nineteen counties who require mandatory mediation compliance prior to a case being scheduled for a final hearing, I could not determine the purpose of there being a mandatory filing indicating that an ENE had been conducted; unless that purpose is solely intended to evaluate the success of the ENE option.

In that the ENE process is much more involved than I’ve addressed, I would strongly urge you take a close look at this new ADR procedure.

I might add that at this point I really don’t know how the family court judges will independently utilize the ENE process. Rather, I can certainly see this process being employed by family law attorneys in a number of “single-issue” cases (e.g., alimony) and of having a greater benefit in those cases where there are significant marital assets involved, or in highly-charged child custody cases.

We’ll all have to see if (and how) this concept is embraced and utilized by the State’s family law bar going forward.

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