Why Not Early Neutral Assessment?

The Early Neutral Evaluation or Early Neutral Assessment (ENA) process has its roots in Hennepin County, Minnesota. The process assists families to resolve child related matters early on in a contested divorce or allocation of parental responsibilities case. The hope was to get the matters related to children settled early so as to lessen the impact on the children while also ensuring these concerns did not become conflated with financial matters.

The process and team was designed with care. Team members possessing a strong background in family law matters and parenting disputes are essential. Each team member is a highly skilled and experienced mediator capable of performing the evaluation and facilitating a negotiation without reverting to mediation as their tool. The team is composed of one attorney and one mental health professional. This is to bring the expertise of both disciplines while at the same time guarding against the pitfalls and biases that naturally creep into the perspective of people who work in the field for long periods of time. The old saying that to a carpenter everything looks like a nail is only too true.

Given the inherent makeup of most families, one parent male and one parent female, teams were designed to reflect that makeup in order to eliminate perceptions of bias. As the face of families continues to change, ENA teams have evolved as well and try to assure that LGBTQ parents and those with specific cultural needs have access to teams which can assure the same lack of bias and gender neutrality, as well as sensitivity to cultural needs as our society becomes more multicultural.

The process itself is profoundly different from a standard mediation. ENA is an evaluation or assessment and not mediation. However, it is a type of alternative dispute resolution (ADR). An agreement reached during an ENA takes the form of a standard mediation agreement, i.e., a memorandum of understanding (MOU).

In some ENA models the process occurs entirely within the courthouse setting. The model adopted in Adams County runs along those lines. Being in the courthouse with an introduction by a judicial officer helps achieve buy-in and establish credibility. Adams County has a dedicated team of experts who are available to meet with parties at the courthouse and the parties are encouraged to participate. The assessment begins with an introduction by a judicial officer who explains what will take place. That judicial officer is also available should an agreement be reached. It can then be read into the record and/or adopted by the court.

Almost all other ENA teams in Colorado operate under a slightly different model. These are privately formed teams. They have the same make-up of an attorney and a mental health professional. The professionals are both skilled and experienced in mediation and have been trained in ENA. These teams are hired privately. They do not have judicial officers who set the stage or oversee the process. Instead, the team members themselves provide the introduction. The team instructs the parties and counsel as to how the process works and what their respective roles are in the process. The team members strive to assure the parties develop a commitment to the process. In this model, the team members must establish their own credibility and engage the parties in a trusting relationship without the initial introduction and “boost” provided by a judicial officer.

From the outset, every ENA team shifts the focus to the child or children. In this way they help the parents recognize that they do have a common interest and goal. All ENA sessions progress in the same manner once the initial introduction and instruction is completed. A picture of the children is usually requested and placed in the middle of the table. This helps ensure the focus of the session remains clear and present. “On the table,” one might say.

The attorneys, if they are present, have been instructed as to their role which is to assist but not to advocate. As you might imagine, this refocusing can be difficult for attorneys steeped in litigation, negotiation and positioning. However, most quickly develop a respect for the process and defer to the team to set the tone and keep things on track.

The Petitioner will be asked to lead off by describing the history and the issues from his or her own perspective. This usually takes about 15-20 minutes. The parties are told that the issues can be entirely different for each of them. What’s important for the team is to hear what’s important for each of the parents and not to simply have a point/counterpoint. The team may ask specific clarification questions. This helps to bring out important information including anything that the team feels might have been missed. The other parent will be told to simply write down anything which he or she feels is important so that it won’t be forgotten when it is their turn. This is rigidly enforced. Each parent must be given a respectful opportunity to be heard.

After the Petitioner’s turn, the Respondent (or Co-Petitioner)  will have the same opportunity to talk about what’s important to them. Again, the team will ask for details or expansion for anything that they feel is missing and will rigidly enforce the rule as to the other parent not interrupting. They will ensure that the other parent knows that they will have a second opportunity to speak if it’s truly necessary.

During this initial recitation of history and issues from the perspective of each party the team will not force discussion of only those issues subject to the evaluation. A party will be allowed to provide the history of the relationship in appropriate language. The team gains valuable insight from where the party places an emphasis.

Following the completion of the Respondent’s 15-20 minutes of speaking about what’s important to them, each parent will be given another chance to reply and add anything which was not previously included in their discussion. This is a chance to bring up items not previously addressed – not necessarily to rebut the items brought up by the other parent. This is limited to five minutes per parent. Before this time begins, the team will again talk about civility and neutrality and demonstrate how emotions are to be kept in check. The process is not about venting anger or to get in “digs” at the other parent.

This team then will ask if the attorneys have any other factual information the team should hear which the parents have not already mentioned. If they stray or become positional, as sometimes occurs, they are reminded that it is an ENA for the parties and is designed to focus on giving them a chance to resolve their issues jointly. Attorneys are a great resource for ensuring that matters that are important but which might have been missed are also covered.

The time has now come for a break and for the ENA team to caucus and to discuss the evaluation. The parties and the attorneys are sent for a break while the team has a serious discussion and begins to hash out what feedback they will provide to the parents as well as how they will present it.

The team will then present their response, and their underlying reasons for forming the opinions and recommendations they have reached. They will discuss what supports their reasoning and include why a court is likely to proceed the way they believe it will. A great deal of this is the “reality testing” phase of the work. It requires a back and forth between the parties and the team. The team will usually split up their recommendations to allow each team member to provide some of the feedback.

There is no “good cop/bad cop” routine. Instead, it is a presentation by the team in the form of trying to help the parents to come up with a plan for their family.  There is not so much an effort to persuade parents as there is to assist them. This is done by providing an honest and straightforward evaluation that parents can understand and accept. Reaching acceptance depends to some degree upon ensuring the parties understand how the team reached the evaluation. When parents believe that it was arrived at by neutral and experienced experts, who have only the best interests of the family as their concern, and have an opportunity to question and understand how the result was attained, they are much more likely to accept the recommendation even if they disagree with it initially.

The parents are then given a chance to meet separately with their own counsel, or if not represented, to think about the feedback from the ENA team. The attorneys can assist greatly at this point by helping their clients to understand the legal bases for the team’s insights and conclusions. Sometimes it’s best for counsel to have this meeting with their client privately without the team being present.

Following this discussion, the parties meet again and negotiate. This is generally a meeting facilitated by the team members – NOT a mediation. The team can assist with putting together an agreement by facilitating that discussion.

It is generally accepted that ENA/ENE has about a 90% settlement rate.  ENA is an underutilized, yet highly effective, approach which can reduce the duration of a parental conflict, reduce the trauma experienced by children, prevent parenting time and decision making from becoming bargaining chips during financial negotiations, keep cases off the court’s docket, and allow parents to experience success in negotiation. This model sets the stage for future co-parenting by helping parents to recognize their common interests related to their children and to experience success in planning to address the best interests of their children.

You can find out more about ENA and how an attorney can assist you here.

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