Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 91
Beyond Mediation: Exploring
Expert Determination and
Early Neautral Evaluation
by Abbie Coleman & Tamara Davis, Associates at Collyer Bristow.
relationship by including a clause to that e昀昀ect in
their contract, or can agree this at a later stage once
a dispute has arisen and expert determination is
required. Even if expert determination is decidedly
non-binding, it can still be valuable in narrowing the
issues and/or providing insight into the merits of a
claim.
When parties consider alternative dispute resolution
(ADR), the focus is often on mediation, arbitration,
or straightforward negotiations. However, a number
of alternative ADR mechanisms can o昀昀er equally
e昀昀ective, and n some cases more suitable, routes to
resolving commercial disputes.
In this article, we explore two such mechanisms:
expert determination and early neutral evaluation.
Each has distinct advantages and is particularly well
suited to speci昀椀c types of disputes.
However, expert determination is not without
limitations. Because the expert’s focus is technical
rather than legal, legal arguments may not be fully
addressed making it less suitable where disputes
involve a signi昀椀cant overlap between legal and
technical issues.
Expert determination: a specialist solution
for technical disputes
Expert determination is a private dispute resolution
process in which the parties appoint an independent
expert to decide a particular issue. The expert is
selected for their technical or industry expertise,
and typically conducts their own investigation to
reach a decision based on their specialist knowledge.
This form of ADR particularly appropriate where
disputes (in full, or in part) turn on technical issues
such as:
•
share or business valuations in
shareholder disputes
•
accounting issues in partnership disagreements
•
whether technical obligations contained within
a commercial contract were in fact performed
by a party
Early Neutral Evaluation: Testing the
Strength of Your Case
Early neutral evaluation (ENE) involves instructing
an independent third party, often a retired judge or
senior lawyer, to provide a non-binding assessment
of the legal merits of a dispute.
Despite its name, ENE does not always occur ‘early
on’ at the very outset of proceedings. It is actually
most e昀昀ective once pleadings have been exchanged
and the parties’ positions have been properly
articulated.
The evaluator reviews the available material and
provides an informed view on the likely outcome
were the case (or a particular issue therein) to
proceed to trial.
One of the key advantages of expert determination is
its e昀케ciency. Because the expert will be determining
a speci昀椀c issue, the process usually requires limited
procedural steps and often dispenses with extensive
submissions. This can make it a faster and more coste昀昀ective alternative to litigation or arbitration.
This can be particularly useful where it is suspected
that one or both parties have an overly optimistic
view of their case. An objective assessment from
an experienced evaluator can help recalibrate
expectations
and
encourage
constructive
settlement discussions, in light of a more informed
understanding of litigation risk and the potential
costs associated with that.
Another important feature is 昀氀exibility. The parties
can agree whether the expert’s decision will be
binding. They can do so at the outset of their
EXPERT WITNESS JOURNAL
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AUGUST 2026
