• The form of an ENE can also be varied. For example, it can be as simple as providing the Evaluator with an agreed brief of facts and issues for decision or it can involve a hearing where legal or factual issues have been briefed in advance and presented or “argued” before the Evaluator. The parties can request a written or oral Evaluation.
• It is critical that the parties choose an independent Evaluator whose judgment they respect. While the Evaluation provided will not be a guarantee of how a court or tribunal will decide the same dispute or issues in the future, it will nevertheless provide a potentially valuable guide to its outcome.
• It must be remembered that the appointment of the Evaluator is not for the purposes of giving legal advice to the parties and the Evaluator has no liability for the correctness of the Evaluation. The parties should take their own legal advice as to the nature of the ENE, the role of the Evaluator and the merits of the Evaluation. The Evaluation is not binding on the parties but provides information that may help steer the parties to a fair and sensible result with significant savings in costs and time.

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