Neutral evaluation

What is neutral evaluation?

Neutral evaluation is a process of evaluation of a dispute in which an impartial evaluator seeks to identify and reduce the issues of fact and law in dispute. The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings of liability or the award of damages.

When is neutral evaluation available?

Neutral evaluation is available for all proceedings in Classes 1, 2, 3, 4 and 8 of the Court’s jurisdiction (Pt 6 r 6.1 of the Land and Environment Court Rules 2007).

How is neutral evaluation undertaken?

Neutral evaluation is undertaken pursuant to Pt 6 r 6.2 of the Land and Environment Court Rules 2007. The Court may refer any civil proceedings for neutral evaluation by an evaluator agreed to by the parties or appointed by the Court. The Court may refer proceedings for neutral evaluation with or without the consent of the parties (Pt 6 r 6.2(2) and (3) of the Land and Environment Court Rules 2007).

The Court provides a neutral evaluation service at no cost to the parties by referral to a commissioner of the Court. The Court may also refer proceedings for neutral evaluation to an external evaluator not associated with the Court, by agreement of the parties. The parties are responsible for the costs of an external evaluator.

The evaluator may give directions as to the preparation for, and conduct of, the neutral evaluation (Pt 6 r 6.2(2) and (3) of the Land and Environment Court Rules 2007).

Duty to participate in good faith

Each party to proceedings that have been referred for neutral evaluation is under a duty to participate, in good faith, in the neutral evaluation (Pt 6 r 6.2(4) of the Land and Environment Court Rules 2007).

Outcomes and orders

Neutral evaluation might result in the following outcomes:

• after considering the evaluation of the proceedings, the parties might negotiate and agree on the terms of a decision in the proceedings that would be acceptable to the parties — if the decision requires the Court to make orders, the matter will need to be listed before the Court for it to consider and, if it considers the terms appropriate, make orders in accordance with the decision agreed to by the parties
• the parties might not agree in which case the matter is referred back to the Court for listing for hearing before a different commissioner or a judge.