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By: Letty M-S Van Ert
Q: What is the ENE process and how has it changed the way Minnesota courts handle family law cases?
A: “ENE” stands for Early Neutral Evaluation. ENE is a process utilized under the court’s Early Case Management (“ECM”) approach to handling family law matters. ECM establishes court intervention within a few weeks of filing a family law case. Under ECM, the first meeting with a judge is called an Initial Case Management Conference (“ICMC”). The idea is that meeting with the judge at the beginning of the case encourages the parties and their attorneys to narrow the issues and figure out ways to resolve conflict without additional court involvement, for example, through alternative dispute resolution (“ADR”) processes like mediation and ENE.
In an ENE, the parties meet with a neutral person, often an experienced attorney formally trained in handling ENE cases, who acts as the evaluator. The neutral walks through the issues with the parties and helps them identify and resolve outstanding disputes, in part by advising the parties how a judge would likely resolve the case. The process can lead to the parties reaching an early understanding of the strengths and weaknesses in their case and can facilitate settlement.
There are two types of ENE: “FENE” which stands for Financial Early Neutral Evaluation, and “SENE” which stands for Social Early Neutral Evaluation. FENE is employed when the parties need assistance resolving the financial aspects of their case. SENE is employed when the parties need assistance in deciding issues such as custody of children and parenting time. In an SENE, there are two neutrals, one male and one female.
If the parties don't agree or only agree on some issues by the end of the ENE process, the discussions and negotiations are completely confidential. Neither the ENE providers nor the attorney or their clients can tell the court why there was no settlement in the ENE. Only a signed settlement can be reported to the court.
Introduced to the Minnesota Court System in the mid-2000s, ENE has dramatically changed the landscape of the family law process for those districts which have implemented ECM. Prior to that time, it was commonplace for the attorney to file the divorce papers with the court and immediately schedule a hearing to resolve issues such as custody, child support, spousal maintenance, temporary living arrangements of the parties, etc. The parties and their attorneys would then spend significant time and resources determining their individual positions, many times building a case against the other party, and generally preparing for litigation. With the advent of ENE, the focus has changed from early litigation to early settlement. In Ramsey County alone, over half of the cases settle during the first session of ENE and three-fourths reach at least some agreement. Statewide, more than 70% of the cases referred to ENE result in full or partial settlement. Settlement puts substantially less stress on the court itself, by eliminating many motion hearings and trials from the court’s calendar. In addition, the ENE process is less financially burdensome than litigation and reduces the level of acrimony between the parties that often results from contested hearings. Furthermore, since the focus early on is on settlement, the hope is that the parties will avoid becoming entrenched in their positions and instead remain open to solving problems. Avoiding acrimony lends itself to better ongoing relationships between the parties, which is so vital to parties who must continue to co-parent for many years into the future. ENE has also reduced the need for full custody evaluations, and has resulted in fewer appeals and post-decree motions.
Letty M-S Van Ert is an associate attorney at Tuft & Lach, PLLC located in Maplewood, MN. In addition to representing clients in the areas of estate planning, probate, divorce, child custody, child support, and other family law matters, she is also a Rule 114 Qualified Neutral (mediator) serving clients in Bloomington, Plymouth, St. Louis Park, Maple Grove, Minnetonka, Edina, Minneapolis, St. Paul, and surrounding areas. |
