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Neutral evaluation
In this section:
- What is neutral evaluation (from 1 April 2022)
- Going for neutral evaluation in the State Courts (from 1 April 2022)
- What is neutral evaluation
- Going for neutral evaluation in the State Courts
What is neutral evaluation (from 1 April 2022)
Neutral evaluation is a way to resolve a legal dispute without going to trial. During neutral evaluation, a neutral third party (the evaluator):
- Evaluates the case based on evidence provided by you and the other party.
- Provides an estimate of the likelihood of success of your case at trial.
Evaluators may be judges or senior lawyers, depending on where your case is heard.
Neutral evaluation is not legally binding unless both parties agree that it will be legally binding.
You and the other party can decide what to do with the evaluation. You may:
- Use the evaluation to assess the strengths and weaknesses of your case.
- Make the evaluation binding: This means you and the other party will have to follow the evaluation as if it is a court judgment. Both parties must agree to record a consent judgment or terms of settlement based on the evaluation.
When it applies
Any party in the dispute may request neutral evaluation at any stage of the proceedings. You and the other party may jointly request neutral evaluation.
A judge may also recommend that your case be referred for neutral evaluation.
Where the parties are represented by counsel, early neutral evaluation (ENE) will be used for the following claims:
- A personal injury claim.
- A non-injury motor accident (NIMA) claim.
You will receive a notice from the court about the details of the session. Lawyers normally represent the insurers and clients at the brief neutral evaluation session. If you have a lawyer representing you or your insurer, you do not need to attend the first session. If necessary, you may be asked to attend future sessions.
Refer to Paragraph 39 of the State Courts Practice Directions 2021 for more information.
When it is appropriate
You can benefit from neutral evaluation if your case involves:
- A lot of documented evidence. For example, construction or accident claims.
- Conflicting expert evidence and where it may be costly and time-consuming for expert witnesses to testify. For example, medical negligence claims.
- Technical issues that have to be resolved before proceeding with negotiation.
- For example, a construction or renovation contract case in which there are disputes on whether work was carried out in accordance with the agreed terms.
- A deadlock and you are not open to settlement.
If you are uncertain or are open to settlement, you may wish to consider mediation instead.
How it compares
Understand the main differences between mediation, neutral evaluation and going to trial.
| Mediation | Neutral evaluation | Trial |
|---|---|---|---|
The purpose | To find a mutually acceptable settlement | To assess the merits of the case | To provide judgment |
Control over the outcome | You decide if the settlement is acceptable | You can choose what to do with the evaluation | Judge makes a decision that you must follow |
Privacy | Information is confidential and there may be private sessions between the mediator and one party | Information is confidential and there are no private sessions between the evaluator and one party | Information is generally public |
Time frame | Short | Shorter than a trial, but it may be longer than mediation | Longest |
Benefits of neutral evaluation
There are several benefits of choosing neutral evaluation over trial.
Settling your dispute through neutral evaluation will generally be less costly as it takes less time.
This means you will save on legal and court hearing fees that would have been spent on preparing for and going to trial.
Neutral evaluation can help you clarify or narrow down the scope of your dispute. It will also give you an estimate of your chances of success at trial.
This means you can make a better decision about whether you want to negotiate for a settlement or go to trial.
Trials are generally open to the public while neutral evaluation sessions are held in private.
This means the discussions between parties during a neutral evaluation session will be confidential. Information will not be given to the trial judge if you proceed to trial.
How to request neutral evaluation
How you request neutral evaluation depends on which court hears your case.
You may request neutral evaluation by the State Courts' Court Dispute Resolution Cluster (CDRC).
Note
Before requesting, you need to check whether the other party is willing to attend neutral evaluation. The CDRC only accepts cases where all the parties agree to neutral evaluation.
How to file
If you wish to attend neutral evaluation, file the Court Dispute Resolution (CDR)/Alternative Dispute Resolution (ADR) Form (Form 2, Appendix A1, State Courts Practice Directions 2021) via "Request for CDR" on eLitigation. The form should confirm that all parties consent to neutral evaluation and contain the parties' available dates in the next two months to attend the neutral evaluation.
After you file
If your application is accepted by the CDRC, you will receive a letter notifying you of the date, time and venue of your neutral evaluation hearing. The other party will also receive this letter.
If you fail to attend the hearing without providing valid reasons, you will be deemed to be unwilling to attempt neutral evaluation. If the case proceeds to a trial, the court may take such conduct into account when making costs orders. (1)
Estimated fees
There are no fees for neutral evaluation by the CDRC except for District Court cases where each party needs to pay $250.
Refer to this table for the exceptions and details:
Type of case | Cost of CDRC neutral evaluation |
|---|---|
Magistrate's Court cases | Free |
District Court cases:
| Free |
All other District Court cases not mentioned above | Each party pays $250 |
How to file
If you wish to attend neutral evaluation, file the ADR Offer (Form 4) via eLitigation and serve a copy on the other party.
After you file
If the other party is willing to attempt neutral evaluation, they will file a Response to ADR Offer (Form 5) and serve a copy on you.
The court may then give directions for your case, such as to set a timeline for neutral evaluation to complete, or to adjourn pending court proceedings. You will need to arrange for neutral evaluation with a relevant organisation.
If the other party fails to respond to the ADR Offer, they will be deemed to be unwilling to attempt neutral evaluation without providing any reasons. If the case proceeds to a trial, the court may take such conduct into account when making costs orders. (2)
Where to go for neutral evaluation
The Supreme Court does not offer neutral evaluation services. If the court approves your request, you need to arrange for neutral evaluation with an organisation of your choice.
Some options include the:
Need help?
The information here is for general guidance as the courts do not provide legal advice. If you need further help, you may want to get independent legal advice.
Find out moreResources
Refer to the following guides:
- The electronic Motor Accident Guide for more information on motor accident claims.
- Guidelines for the Assessment of General Damages in Personal Injury Cases for more information on personal injury cases.
- This extract focuses on neck injuries (PDF, 27 KB).
Refer to:
- For State Courts: Paragraph 39 of the State Courts Practice Directions 2021 for neutral evaluation in the State Courts.
- For Supreme Court: Paragraphs 53 and 54 of the Supreme Court Practice Directions for the dispute resolution process for civil cases in the Supreme Court.
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