Early Neutral Evaluation Model Clause

Ensure an effective and proportionate response in the future should a dispute arise
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Early Neutral Evaluation is a consensual, confidential and relatively informal process in which parties to a dispute use the services of an independent, neutral evaluator to provide a non-binding evaluation of the facts, evidence and legal merits of the matters in dispute.

The process is specifically designed for disputes which are already in litigation or arbitration. The key elements of Early Neutral Evaluation are that a dispute has already arisen, the parties are a long way apart and looking at lengthy court or arbitral proceedings. In such cases, the parties might benefit from an independent assessment or evaluation of the issues that have arisen and the likely outcome and range of damages if the matter is to proceed, to promote settlement discussions.

The parties may enter into an agreement for those purposes, and the following clause is recommended. The words in square brackets should be deleted/completed, as appropriate.

“[Name of first party] and [Name of second party and Ors] hereinafter referred to as the parties, are parties to [[a contract entered into on or about [enter date]] or [ proceedings in the [ ] Court referred to as CIV- ]].

 

The parties have agreed that all matters in dispute between them shall be referred to Early Neutral Evaluation by [Name of Evaluator] in accordance with the Agreement for Early Neutral Evaluation and Rules for Early Neutral Evaluation of the Building Disputes Tribunal (BDT) which procedures and rules are deemed to be incorporated by reference herein.

 

[if the parties are unable to agree upon the identity of an Evaluator within five (5) working days from the date of this agreement, then the Evaluator shall be appointed by BDT upon the application of any party.]”

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