In this episode of Legal Lingo, MN divorce attorney Rob Gadtke and Lester discuss the differences between Early Neutral Evaluation (ENE) and Mediation in a Minnesota divorce case.
[Rob] Shh . . . Don't say anything. If he doesn't answer in the next 20 seconds, we're not doing Legal Lingo this week.
[Rob] Hey everybody! It's Rob Gadtke. Welcome to another episode of Legal Lingo with me and Lester. I am so glad to have you along for the ride.
On today's episode, we're going to cover the two most commonly used forms of dispute resolution in Minnesota divorce cases. So, if you don't know the backstory, here it is:
If you're involved in a divorce case and at the time the case is filed with the court, and you don't have a complete, final, holistic agreement with your spouse (and I'll tell you no one does), the law requires that you attempt some form of dispute resolution before the judge can decide the case him or herself.
Because the law requires it, it usually doesn't make much sense to try to get out of it, even if you think it's going to be pointless because your spouse won't agree.
So what I tell my clients is it's better to spend our time thinking about which of the two processes is right for them, rather than trying to make up arguments as to why we shouldn't have to do it. And those two processes are what we're going to talk about today.
So yesterday, Lester went with a client to an Initial Case Management Conference (or ICMC scheduling conference) and we cover what that is in our last episode. Well, while he was at the hearing, Lester ran into a little bit of trouble because he wasn't prepared.
[Lester] Roberto: How's it hanging.
[Rob] I'm good. Tell them what happened yesterday.
[Lester] The judge was an idiot. That's what happened. So, I'm at this ICMC. You know, the Initial Case Management Conference that happens at the beginning of every divorce case.
[Rob] Yes, I know what an ICMC is Lester.
[Lester] So I'm sitting there with my client acting all professional when the judge, this crusty old man, looks directly at my client and says, "Do you want to participate in the ENE process?"
Now my client, who I have to say in her defense isn't the sharpest knife in the drawer, starts nodding her head at him like he offered her a free vacation. So, I interrupt their little sweet lullaby and I say, "No, Your Honor, she does not wish to do an ENE.” Then he gives me this hard look.
He looks right at her again and says, "Have I explained the benefits of the program?"
I nod, but my client turns and says, "He never explained anything to me."
So, obviously, I have to take control of the situation. "That's not true," I say. "That woman is an unreliable person. I've explained everything to her. She is a liar."
So, the courtroom gets real quiet at that point. And the last thing I need at this point in my career is any old judge thinking I am weak.
What do I do?
I look him straight in the eye and I say, "Hmm. I know ENE is a voluntary program and you can't make us do it. She chooses mediation."
And then I get up and walk right out of that courtroom before he can say one thing to me.
[Rob] You did what?
[Lester] But now I'm second-guessing myself. Maybe I should have done ENE. Do you know how expensive mediation is?
[Rob] Let's back up for a second. Why did you want to do mediation in the first place?
[Lester] Why does anyone do mediation? It's what all the lawyers in civil cases do, Rob.
[Rob] True, but having a neutral professional shuttle back and forth between two rooms trying to reach some sort of split the baby compromise doesn't always work well in divorce cases.
[Rob] Because divorces are decided by judges and not juries. Judges are learned professionals who not only know the law, but they have their opinions about how generally things should shake out in a divorce case. And as a result, most professionals who work in the field, should be able to tell you a range of possible outcomes in a divorce case. Now a good attorney will fight within that range, trying to skew the outcome more towards his client or her client, but just because there's a range of outcomes doesn't mean that each outcome within that range is equally likely, given the judge's individual preferences. Do you see where I'm going here?
[Rob] A mediator is a neutral professional whose job is to swing back and forth between the parties trying to facilitate some sort of settlement. Some sort of deal. Now, in theory, a mediator should not care what the deal is. All they're trying to do is force a deal or settlement. If they achieve one, regardless of what the terms are, then they've done their job successfully.
[Rob] In an ENE, the evaluators still try to get the parties to reach an agreement, but if that process breaks down, and the people get stuck, the evaluators tell the parties what they think the judge will do if the case goes to trial. That's the evaluation part of an Early Neutral Evaluation.
[Lester] Well, the last thing I want is for the judge to hear that the evaluator sided with them. I mean, we just started discovery.
[Rob] That's a good point, but everything that's said in an ENE is confidential. And if the parties don't reach a settlement at the end of the day, all the evaluator reports back to the judge is that the parties attempted the process, participated in good faith, and didn't reach an agreement.
[Lester] That doesn't sound too bad, as long as you get the right evaluator. I mean, the last thing I need is someone biased against mean or women.
[Rob] Most counties use two evaluators for every case. A man and a woman. Just to make sure that sort of thing doesn't happen.
[Lester] Two evaluators sure sounds pricey.
[Rob] It would be, except in order to do an ENE, you need a court order. In an order for a professional to be listed on the Court roster of available ENE providers, they have to agree to keep their costs down. The clients actually get to pick which any provider they want to use, and most of them are very good.
[Lester] So why would anyone ever choose traditional mediation?
[Rob] Now you know why some judges push so hard for the process, even though it's technically voluntary. Now there are some situations where I don't think it's a good idea for my clients to do an ENE and they fall into a few general situations.
The first is if I am concerned that my clients personality may not mesh well with the process. And what I mean by that is although ENE is technically voluntary, once the parties opt into the program, there's going to be a court order that to follow whatever reasonable direction is given by the evaluator. And some of these evaluators, because they're supposed to be evaluative and give opinions, can kind of almost take on a judge like persona which can rub people the wrong way, which can make it actually
more difficult to settle cases.
The second reason why I may not want to do an ENE, is if I'm very fearful that the result of the ENE could actually make it harder to settle the case. Now, this is contrary to conventional wisdom. Most people who love ENE's talk about how great the settlement percentages are. But in my practice, I've seen situations where people go to an ENE, an ENE provider makes a recommendation based on the limited amount of time they spend with the people, and then one of the parties wins (or thinks they won the ENE) and becomes completely unmanageable, refuses to negotiate any settlement that isn't exactly in line with the ENE recommendations. And that almost always results in a trial. I can't tell you how many times in my practice I've actually seen ENE evaluators recommend something that doesn't happen at a trial. So sometimes if you get a really strong ENE recommendation, and the person really just had this core belief that they were going to win it anyways, it can make it impossible to settle the case after that point without just simply adopting the evaluators recommendations.
Sort of connected with that, but distinct. A third situation when I really don't like an ENE's is if I'm worried that my client isn't going to do well at an ENE. Or we don't have enough evidence early in the process to actually convince the evaluators of my client's position. Part of that is a structural or procedural problem. What I mean by that is an ENE evaluator will spend one to three hours with the parties listening to their version of events and from that we'll make a recommendation. Well, I've seen many cases where people are alleging serious chemical dependency, mental health, abuse other issues on behalf of their spouse, but they don't have any tangible evidence. Right in front of them. Right now. To prove those issues are true. And the ENE evaluators simply don't believe it or say there's no good evidence of it. Or say we're not as concerned as the person is. And then, when the other spouse hears that, loop back to Reason #2. They decide they're never going to settle the case because the ENE people said there wasn't a problem. When in fact maybe there's lots of evidence of a problem, but since the ENE evaluators don't go outside the box of what happens in the mediation or any session itself, you get a false impression of what the outcome would be at a trial. So, sometimes it is best to just have a neutral professional shuttle back and forth and try to reach agreement without offering their own opinion of what's likely to happen based on the limited information that's before them.
[Lester] So, what if I wanted to do an ENE here?
[Rob] You have to go back to the judge, and ask him or her to order one. The other side would have to agree too, right, because the process is voluntary. Like I said, this is all usually handled at the ICMC.
[Rob] So that's the difference then. Mediation is usually just one neutral professional who shuttles back and forth between the rooms. ENE can be two neutral professionals in custody and parenting time matters (and that would be a man and a woman in most counties). If you're dealing with a Financial Early Neutral Evaluation, then you would just have one person. Another difference is that mediation, by its very nature, is facilitative. Meaning the professional who's conducting the session is just trying to facilitate an agreement but not express an opinion. ENE (or Early Neutral Evaluation) is an evaluative process the professionals are listening to the parties make statements, give information, and then evaluating the situation as they see it. The third is difference is that mediation can really happen at any time. With or without a court order. You can agree to do mediation. If you're unsuccessful you and your attorney can agree to try it again with the other side. ENE's usually happen early in the process. Usually within the first 60 days after a case is filed. The fourth difference is that in a mediation, if you have disputes about kids and money, the same mediator can deal with both issues during the same session. An ENE separates those two apart so you'll have an ENE (or Early Neutral Evaluation) some counties call it a CP-ENE (or Custody and Parenting Time Early Neutral Evaluation) and that would handle issues related to custody and parenting time. There's a separate process known as an FENE (or a Financial Early Neutral Evaluation) and that deals with money issues. So, if you're in a mediation, you can deal with everything. If you're in an ENE, you would have to deal with custody and parenting time issues in one setting. Financial and child support and alimony issues in another.
[Lester] Before we go, let me just say that I have scored 10 premium cows, and I'm giving away a half a cow to each of the next 20 people who hire me for their divorce.
[Rob] That's it. We're done. This is not a butcher shop. We are not advertising for meat with divorces. So that's the Legal Lingo for this week. If you liked what you saw. If it was helpful. Please comment give us a thumbs up. Subscribe. Until next week, remember: Stay strong. Stay smart, and for goodness sake, stay away from Lester! See you!