The Early Neutral Evaluation Agreement has three appendices:
- Appendix 1 – Confidentiality Agreement for Representatives and Support Persons of Parties to Early Neutral Evaluation;
- Appendix 2 – Default Procedure for Early Neutral Evaluation; and
- Appendix 3 – Fees and Expenses for Early Neutral Evaluation.
The procedure provided for in Appendix 2 is set out below:
Default procedure for Early Neutral Evaluation
Unless the parties and the Evaluator agree otherwise, or unless the Evaluator directs otherwise, the procedure for the Early Neutral Evaluation in Schedule 2 to the Agreement shall apply.
1.0 The Evaluator shall convene a Preliminary Conference with the parties and their representatives within five (5) working days of the date of acceptance.
2.0 Each party shall, within ten (10) working days of the date of acceptance, serve on the Evaluator and every other party in hard copy by courier, a copy of that party’s submission of case together with all supporting documents and evidentiary material.
The submissions of case shall include:
- The nature and basis of the dispute; and,
- The factual and legal issues involved in the dispute and the party’s contentions as to those issues; and,
- The relief or remedy sought and the quantum of any claim, counterclaim or cross claim; and,
- A copy of the contract or relevant sections thereof, or in a case where the contract is oral, or partly oral, a statutory declaration as to the terms of the contract; and,
- All statements, reports, documents or other evidential material relied upon by that party in support of its contentions.
3.0 The Evaluator shall convene an Evaluation Conference on or before the fifteenth (15th) working day from the date of acceptance.
4.0 The procedure for the Evaluation Conference will be as follows:
- Each party may in turn present a summary of its case, its evidence and relevant supporting material.
- Each party may refer to any documents or other evidentiary material during the summary of its case if appropriate to explain or support its contentions or to refute the contentions of any other party. The rules of evidence do not apply.
- The Evaluator may ask clarifying questions at any time.
- There will be no testimony or cross-examination of witnesses.
- At the conclusion of the presentation of each party’s summary of its case, each party may in turn, and in reverse order to the earlier presentations, make a closing submission in reply to the submissions of any other party.
- The Evaluator will clarify and focus the issues and identify areas of agreement and disagreement.
- The Evaluator will identify further key documents or additional information required to be disclosed.
- The Evaluator will help the parties realistically assess litigation costs.
- The Evaluator may establish a plan for sharing additional information and/or conducting the key discovery that will allow the parties to enter into meaningful settlement discussions or position the case for resolution by trial.
- The Evaluator will determine whether some form of follow up session would contribute toward case development or settlement.
- The Evaluator will encourage the parties to enter into settlement negotiations either chaired by the Evaluator or mediated by an independent
- Mediator from the Building Disputes Tribunal’s Panel of Mediators.
5.0 The Evaluator may request any party to provide further information or evidential material which shall be provided to the Evaluator and every other party within three (3) working days of receipt of any such request and in the manner requested by the Evaluator.
6.0 Any other party may file a submission in response with the Evaluator and every other party within a further three (3) working days.
7.0 The Evaluator shall make an Evaluation of the disputed matters within ten (10) working days of whichever event is the latter of:
(a) The Evaluation Conference; or,
(b) Receipt by the Evaluator of any further submissions, information, documents or evidentiary material requested by the Evaluator of any party following the Evaluation Conference.
8.0 The Evaluation shall be made in writing and shall state the reasons upon which it is based.
9.0 The Evaluation shall record the Evaluator’s opinion as to the likely incidence of liability, and where appropriate, a range of damages if the dispute were to be resolved by a court based on the material put forward by the parties in the course of the Early Neutral Evaluation.
10.0 The Evaluation shall not be binding on the parties.
11.0 The Early Neutral Evaluation may be terminated at any time by a party after consultation with the Evaluator.
12.0 The Evaluator may suspend or terminate the Evaluation at any time if the Evaluator feels unable to assist the parties in providing an Evaluation of the dispute.
13.0 The Early Neutral Evaluation will be terminated upon the signing of a settlement agreement in respect of the dispute referred to Early Neutral Evaluation or upon the provision of the Evaluation to the parties, whichever is the earlier event.