Virginia's Judicial System

Neutral Case Evaluation Program Instituted

The Piedmont Dispute Resolution Center (PDRC) is expanding its range of dispute resolution services currently being offered to the community and the general district courts. PDRC has formed a neutral case evaluation program, in collaboration with the Fauquier County Circuit Court and the Fauquier County Bar Association, to encourage the early settlement of civil cases in Fauquier County, Virginia. In July 1999, the Virginia Law Foundation awarded a $12,250 grant to PDRC to develop and implement the first neutral case evaluation program in a mid-sized jurisdiction in the Commonwealth. Consequently, the Fauquier Neutral Case Evaluation Program will provide a model for other mid-sized and smaller jurisdictions throughout Virginia, making neutral case evaluation more accessible.

Neutral case evaluation (NCE) can be described as a form of alternative dispute resolution where two parties and their counsel meet for a confidential settlement conference with a trained and experienced volunteer attorney serving as evaluator who is neutral to the outcome of the case. After a thorough review of the case and after hearing both sides, the evaluator identifies areas of agreement and assesses the strengths and weaknesses, rendering his opinion on its merits and states the likely outcome in personal injury, tort and contract cases. This process encourages settlement because it affords the parties a "second opinion" with an attorney who is an expert in his field.

The practice of neutral case evaluation falls between the two categories of mediation and arbitration. In mediation, the neutral third-party assists the disputants in reaching a settlement. Without imparting opinions or advice for either side, the mediator facilitates problem-solving dialogue between the parties. With an arbitration proceeding, the neutral is an expert in the field and makes a binding or non-binding decision based upon the facts of the case. Similarly, in neutral case evaluation, the neutral assists the parties and their counsel in reaching a settlement, but this is done through a review of the case to which the neutral is an expert in the field and gives his opinion of the case.

The Fauquier Neutral Case Evaluation Program models itself after the highly successful Fairfax Circuit Court Neutral Case Evaluation Program that operates in a large jurisdiction. The Fairfax NCE Program was started through a collaborative effort of the Bench and the Bar, and when the program began in 1993, 64% of the cases enrolled were settled out of court. In the Fauquier Neutral Case Evaluation Program, PDRC, a non-profit 501(C)(3), acts as liaison between the Bench and the Bar in providing the service.

A burgeoning docket shows a 20% increase in civil cases filed in the Fauquier County Circuit Court from 1997-1998. A decrease in trial docket congestion, facilitating law cases to be set within a one-year period is an important benefit of the program. Conservation of court time and judicial resources, including deputy clerks who are present during trials in Fauquier County, are just some of the benefits of Neutral Case Evaluation.

The pilot program is overwhelmingly endorsed and encouraged by presiding Fauquier County Circuit Court judge, The Honorable W. Shore Robertson, and the 70-member Fauquier County Bar Association. Part-time program coordinator, Angelique Greenidge, works with Judge Robertson and the Fauquier County Bar Association NCE ad hoc committee members; Frederick H. Kruck, Esq., Julia S. Savage, Esq. and Jud A. Fischel, Esq. as well as with Circuit Court Clerk, Gail Barb and Deputy Clerk, Helen Zeleski in establishing policies and procedures to accommodate and anticipate the needs of the Court.

In July 1993, legislation became effective to enable judges to refer litigants to a dispute resolution conference, §8.01-576.5 of the Code of Virginia. Neutral Case Evaluation can be referred for a wide variety of cases from small claims to cases with high dollar values; personal injury claims such as slip and fall, automobile accidents, and medical malpractice; claims with fixed or liquidated damages; cases where parties have an ongoing relationship where the issues last beyond the issues in the case; and cases where the cost of litigation outweighs the probable recovery. During the second year of the program, referrals will be expanded to include equitable distribution cases as well.

Twenty-eight attorneys were selected to participate in the Fauquier NCE Program based on their field of expertise, seniority and familiarity with Fauquier County juries. Of the 28 attorneys invited to volunteer for the program, by personal invitation from The Honorable W. Shore Robertson, 16 attorneys agreed to volunteer and be trained as evaluators. Their areas of practice included personal injury, contracts, product liability and domestic relations. All volunteer attorney evaluators have been members of the Virginia State Bar for at least 10 years.

In January 12, 2000, PDRC sponsored a neutral case evaluation training course that took place at the John Barton Payne Community Center in Warrenton, Virginia. The intensive 5-hour training course immersed participants in the theory and practice of neutral case evaluation from the perspective of experienced evaluators. Recognizing that ADR in its various forms has existed for centuries in other countries such as China and Australia, the course began with an introduction to the history of ADR, citing the first U.S. government sponsored mediation program in 1913 organized by the Department of Labor. It also highlighted Harvard professor, Frank E.A. Sander's vision of the multidoor courthouse.

William L. Schmidt, Esq. and Eric F. Schell, Esq. graciously volunteered to facilitate the 4.0 credited CLE course. Both are experts at neutral case evaluation and have evaluated over 200 NCE settlement conferences between them. They have been committed members and volunteers of the Fairfax NCE Program since its inception. Samuel S. Jackson, Jr., Esq., presented a comparative look at neutral case evaluation and another ADR method used in Fairfax called conciliation. Mr. Jackson was also instrumental in writing the grant with PDRC Director, Lawrie Parker.

The course covered a variety of topics, including Preparing for the Evaluation, The Evaluation Process, and Ethics in Neutral Case Evaluation, and included a 30-minute mock demonstration of a neutral case evaluation conference. The course focused on preparation for the evaluation and the evaluator's role during the conference. A complete review of discovery received by respective counsel is necessary to understand the case and to carefully evaluate the views of the parties.

The NCE conference will take place after discovery and about 30 days before the trial date and will be held in a room of the courthouse. At the outset of the conference, parties sign a Statement of Understanding that clarifies the nature of the conference and its confidentiality. Parties and their attorneys are present during the conference and, if applicable, the insurance adjuster is available by telephone. The parties agree to the evaluation and, therefore, are expected to make a good faith effort at settling the case during the conference. After each side presents their summary, the evaluator deciphers and narrows the legal and factual issues of the case. The evaluator's insight encourages the parties to take a realistic look at their case, sometimes for the first time. If the dispute is resolved through NCE, the parties sign a settlement agreement that is binding to the extent of any legal contract.

Responses from attorneys who took the training course have been very positive. There are great expectations for this program in Fauquier County. The considerable interest in the program and the fact that more attorneys signed on as volunteers than expected demonstrate the enthusiasm and willingness of the bar to make this program a success.

Still in its early stages, the Fauquier NCE Program will begin taking referrals from the Fauquier County Circuit Court in the Spring. A short seminar will be open to the entire Fauquier Bar to familiarize attorneys, who are non-evaluators, with the NCE policies and procedures specific to Fauquier.

PDRC believes that NCE should not be limited by the size of its bar or locality and that its availability is as beneficial to mid and smaller-sized jurisdictions as it is to larger-sized jurisdictions. PDRC has recently been invited to submit a proposal for additional funds for the program by the Virginia Law Foundation for the 2000-2001 grant cycle. The funding will be used to continue the development and implementation of this promising and much anticipated project.

Angelique Greenidge serves as Neutral Case Evaluation Coordinator at Piedmont Dispute Resolution Center in Warrenton, Virginia

Figure 1 - Facquier Neutral Case Evaluation Program Overview

This page last modified: March 23, 2000