What is Early Neutral Evaluation?

Early Neutral Evaluations occur mostly in Hennepin County, Minnesota.  Many people do not know that the procedure for getting divorced in Minnesota varies from county to county.  In Minnesota, the court system is organized into “districts.”  There are 10 judicial  districts in Minnesota.  Some judicial districts are comprised of several individual county courts.  Other judicial districts are quite large and are comprised of only one county.  For example, the First Judicial District is situated south of Minneapolis and St. Paul, and consists of many counties, including Dakota, Scott, and Carver.  The Fourth Judicial District on the other hand, consists only of Hennepin County.  This is because Hennepin County is quite large.

The rules for getting divorced in Hennepin County are somewhat different than the rules in other counties.  You can find some of these rules in the Minnesota Rules of Civil Procedure.  Oddly enough, other Hennepin County rules are not published, and are almost like “private” rules known only to the judges and the attorneys who practice frequently in the county.  For example, in Hennepin County, there is a standing order signed by Judge Swenson (a judge who used to be the chief family law judge) that says that you cannot serve formal discovery until after the Initial Case Management Conference.  Surprisingly, many lawyers who practice in Hennepin County are unaware of this rule, and occasionally I have to remind them.  This rule is not followed in other judicial districts.  And, depending on the facts and issues of the case, this rule can make a difference.

There is a combined mediation and evaulation process that is somwhat unique to Hennepin County– the Early Neutral Evaluation, or ENE.  The Early Neutral Evaluation process can be used when the parties to a divorce do not agree about either custody or parenting time.  The ENE process is optional. 

Basically, the parties and their attorneys meet with two (2) mediators / evaluators who are appointed by the court.  One is always a man, the other is always a woman.  The meeting might last for a half hour or it might last for two or three hours.  If an agreement is not reached, the substance of the ENE discussions are confidential and may not be communicated to the court.

The parties and their attorneys present their arguments to the ENE  mediators / evaluators. They mediators / evaluators first see whether they can mediate an agreement between the parties.  If they are not successful, they give their “evaluation.”   They tell each parties how they believe the judge will ultimately decid the case, if the case goes to trial.  The point of this is to enourage the  parties to reach an agreement. 

Probably from the court’s perspective, the ENE process is a success.  It may result in fewer cases going to trial.  This is important to the court because there are literally thousands of divorce cases filed each year and there are about 13 or so judicial officers on the Hennepin County family law bench.  If you do the math, it becomes pretty apparent that it is not possible for all cases to go to trial.

From the perspective of a person getting divorced, the ENE process can be “fair” to one spouse and “unfair” to the other spouse.  This is because it is an unnatural interference with the bargaining process.  When an evaluator tells both spouses that spouse A will get sole custody and spouse B will get only 25% parenting time, it makes it less likely that in the subsequent bargaining process, spouse A will change his or her position.  Spouse A will only become more intransegent, more difficult to bargain with.

In other words, a divorce isn’t over until its over.  The negotiation process can take many months and there can be a lot of bargaining and give and take that goes on.  And, the parties can always avoid going to trial if they want to (and they usually do).  But, give one spouse an “official” opinion from a non-attorney, non-judge employee of the court, and the bargaining process is unfairly skewed in favor of one party.

I am concerned that the ENE process could eventually undermine the perceived value of judges.  It am also concerned that it could be seen as undermining the perceived impartiality of the court.  I believe strongly in the perception of value in judical opinions and the perception of impartiality of the court.  US Supreme Court Chief Justice John Marshall understood this concept in his landmark decision Marbury vs. Madison, 5 US 137 (1803), and I am afraid that the full value of this case is lost upon the current generation of legal practitioners.  My own experience is that people tend to obey court orders that they can respect, even if they disagree with the order.

Here’s the thing–there is a lot of nuance to divorce law.  There is a lot of nuance to the facts of each divorce case.  My own experience, practicing divorce law in Minnesota for 18 years, is that no two cases are the same.  There might be similarities, but no two cases are the same.  And, regardless of what one published case might say about a subject, I can probably find another published case that says something different.

A judge has been to law school, has practiced law, has familiarity with family law, and has presided over family law cases as a judge.  And, a judge has a sense of fairness and fair play.  A judge also has the benefit of being screened for the position (in the case of an appointment by the governor) or being elected by citizens of the county.  The ENE process could be seen as metaphorically showing that none of that matters.  That all one needs is a bachelor’s degree in social work, one can spend 15 minutes listening to one party’s story and then give an opinion that has as much value as a judicial opinion.  I am not sure I agree with this perspective. 

I have also noticed that some ENE evaluators are ignorant about important aspects of divorce law.  Of course, this is understandable because many ENE evaluators are not attorneys and in fact are prohibited by law from actually practicing law. 

Moreover, the ENE process seems to be predicated upon the unspoken premise that judges are predictable.  In other words, a social worker who has never practiced law, and who has probably never appeared in court, is going to “predict” what the judge will do.  That prediction is built into the evaluator’s advice.  Essentially the evaluator “tells” the parties that the judge will “probably” do this, so you should stop negotiating now and Spouse B should just give up and give Spouse A what he or she wants.  In my experience, “predictability” can be equated with “prejudice.”  Is someone who makes the same kind of decision all the time “predictable” in a good way, or “prejudiced” in a bad way?

Of course, if the facts were the same in every case, then predictability is good.  But, ask yourself, how many relationships do you know of where the “facts” of the relationship are identical with other relationships that you know about?  People have different numbers of children, some are boys and some are girls.  Sometimes the mother is the bread winner and sometimes the father is the bread winner.  Children are different ages and some are mature enough to express a preference about which parent they want to spend most time with.  Some children do well in school, some do not.  Some adolescent boys get along well with Mommy’s new live-in boyfriend, some do not.  Sometimes one parent wants to move–not necessarily out of state, but even a move from South Minneapolis to Blaine is significant.

I am in favor of any process that makes it more likely that parties will settle a case fairly.  But, like all attorneys, I represent only one party to a case, and what I really want is for a case to be settled fairly for the party I represent.  It is my job to bring that about.   There is a difference between a settlement and a fair settlement.  To that end, my strong preference is to work with an unbiased mediator who will not provide his or her own “evaluation,” but instead work hard to get the parties to reach a fair agreement.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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