ENE - Mediation with a kick
As an attorney that deals with family court on a very regular basis, it can be easy to get caught up in the special jargon used by lawyers and judges during a divorce or custody case. Go to an ICMC and get ordered to participate in a FENE and SENE? Obviously! Of course, not everybody speaks in acronyms and obscure Latin phrases in their regular lives, so it is helpful to take a step back and explain exactly what Early Neutral Evaluation (or ENE) is all about.
With the court system being overwhelmed by divorce and custody cases, there is a bigger push than ever to keep people from having to go through the contentious, expensive, and time-consuming trial process. Over the past few years, more and more judges are requiring parties to a custody or divorce dispute to engage in alternative dispute resolution before taking their case to court. The most commonly ordered form of alternative dispute resolution is early neutral evaluation, which is not unlike mediation, but with one very substantial twist: In traditional mediation. the mediator is a facilitative neutral meaning that they may work with the parties to come to compromises and work trough the issues present in the case, but are not supposed to interject their opinion as to what would be a likely or fair outcome of the case should it go through the court process. In ENE, an experienced evaluator takes the place of the mediator and does provide an opinion of what may be a fair outcome in the case, after a basic exchange of information takes place.
In Minnesota, there are two flavors of ENE - social and financial. As you may guess, at social ENE issues regarding child custody and parenting time are addressed. The financial ENE addresses issues such as division of property and financial accounts, spousal maintenance, retirement, and child support. The process for either ENE is similar: Once an order is issued to participate in ENE and an evaluator (or evaluators) is chosen, the parties submit certain relevant documents to the evaluator in preparation for the ENE session, which typically lasts around four hours. The evaluation itself typically takes place in the office of the evaluator or some other neutral location- not in the court house.
Each party attends the ENE with their attorney. Each ENE session is run differently depending on who the evaluator is and their personal style and preference, but generally the session begins with a discussion about confidentiality and identification of what issues the parties are looking to resolve. Hopefully, the attorneys have already exchanged basic documents and have worked towards settlement at this point, so it should be the case that all relevant facts are on the table and each side has a good idea of what the other side is looking for. At this point, the evaluator will take time to hear each person's side of the story, usually listening directly to the parties with the attorneys filling in any gaps or providing any legal interpretations or arguments they may have prepared. Once the evaluator feels that they have a firm grasp on what the issues and underlying facts are, they will offer their opinion as to what would be a fair outcome of the case and why. Of course, the opinion is not binding and may not be used in court by either party, so it is completely voluntary for the parties to agree, disagree, or just take some time to mull it over with their attorney.
It is important to remember that the evaluators are all highly experienced with the family court system and have a pretty good idea of what may happen in court if the parties decide to go that route. That is not to say that they can look in to a crystal ball and predict exactly what a judge is going to do after a lengthy three day trial - but even if the evaluator's opinion is not agreed with, it is always valuable to hear the opinion and legal reasoning of a neutral, detached third party. After all, as G.I. Joe always said, "Knowing is half the battle".
As an attorney, our role in the ENE process is absolutely crucial, if a little behind-the-scenes. Unlike in traditional court, the parties will do most of the talking at the evaluation session itself. However, before that session even takes place, your attorney will work to select the best evaluator for your case from the roster of names in each county. Your attorney will present the proper documentation to the evaluator ahead of time, and will work to obtain necessary documents from the other party in advance of the session as well. Your attorney will work with you so that you know the legal basis for your claims and should already have had a thorough discussion of the law and your goals in the case, along with an assessment of what a reasonable outcome may be. Your attorney will be there to present facts that you may forgotten (or didn't realize were important) and will supplement your story with their legal knowledge and research to apply your particular facts to the law. Since such a high percentage of cases settle in the ENE process, it is critical for you to work with an attorney that is knowledgeable in divorce and custody matters, and is willing to take the time to get to know the individual facts of your case. At Vox Law, we pride ourselves on taking the time to learn our client's individual situation, and educating you on the procedure and laws regarding your case ahead of time so that your best case can be put forward to the evaluator.
For more information about SENE, FENE, or any other step in the divorce or custody process, call or email one of our attorneys today for a free consultation.