Case evaluation is a useful tool that can be utilized independently or in conjunction with mediation or any of the collaborative processes. Case evaluation takes a close look at the dispute, the issues, the positions of the parties as well as the applicable law, and objectively assesses the strengths and weaknesses of the case from each party’s perspective. It is a confidential neutral analysis that focuses on the facts, the subject matter that is the context for the dispute and applicable statutes, regulations and case law.
Case Evaluators Offer an Objective Perspective
A case evaluator’s insights are very different from those of experts that are hired by a party during litigation, and offer a more objective perspective than a lawyer representing a party in litigation, primarily because the case evaluator is a neutral and independent player in the process. Similar to the role of experts in the collaborative processes, because the case evaluator is neutral, he or she is totally independent and able to give both sides to a conflict unfiltered and unbiased information and feedback. This is very useful in assessing both positions, and often serves as a “reality check” for one or both parties, who may not have an objective view of the strengths, weaknesses and value of their case. Most case evaluators have the combination of expertise in the subject area of the dispute as well as the state of the applicable law; sometimes, case evaluation may involve two experts – one focused on the substantive area and another on the legal evaluation.
Neutrality, Independence and Confidentiality are Hallmarks of Case Evaluation
Case evaluation may be done in different ways, but neutrality, independence and confidentiality are hallmarks. The case evaluator may provide information on his findings privately to each party, or may participate in a joint session where all parties are present. The evaluation can take place prior to mediation or a collaborative process, during them as part of the process, or sometimes after them. It should be clearly established and understood by all parties at the outset exactly how the evaluation will take place, how communications will be handled, what is shared with the other party, what remains confidential and what are the limits of the case evaluator’s role. There are times when the roles of a mediator and a case evaluator will overlap or be interwoven. Case evaluators often may be asked to slide into the role of mediator after evaluating the case for the parties, providing they have the skills of a mediator. Likewise, mediators will often be asked to offer evaluations of cases as part of their work in mediation.