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Bar News - November 14, 2008

Neutral Case Evaluation in Family Cases to Make a Comeback


Pilot Program to Begin in Lebanon and Concord Family Divisions This Fall

Karen J. Borgstrom

The Judicial Branch Office of Mediation and Arbitration ("OMA"), in conjunction with the Family Division, is pleased to announce the resumption of court-annexed neutral case evaluation, (NCE) on a pilot basis in the Lebanon and Concord Family Division Courts.

In recent years, neutral case evaluation has not been used as frequently as it has in the past in family cases. This is due to an increased use of mediation which is typically scheduled for a first session just after first appearance in cases where parenting issues are paramount. However, in an attempt to give users of the courts’ ADR programs a variety of options to increase settlement opportunities, the OMA and the Family Division are bringing neutral case evaluation back.

Neutral case evaluation is an ADR technique which differs from mediation in that the evaluator provides an "evaluation" or opinion about what might happen in the matter if it should go to trial. Conversely, mediation is a facilitated discussion of settlement options, generated by parties and/or counsel.

In Family Division, most cases are being scheduled for mediation. However, there are cases in which Neutral Case Evaluation could prove to be a more effective tool. The Lebanon and Concord Family Division courts will now be able to assign cases to NCE where complicated property issues remain unresolved as the matter nears the trial date. Some of those cases, which are currently scheduled for multiple-day trials, may be more likely to settle if there is a neutral case evaluation prior to trial.

Participation in NCE will be voluntary and the presiding masters and judges will be inquiring in appropriate cases whether the parties and counsel in those cases would like to try the process. The evaluators will be judges, masters (from courts other than where the case is filed) and experienced attorneys who will be volunteering their time to re-launch NCE to assist parties and their attorneys in exploring settlement options. Since the evaluators have agreed to volunteer their time, there will be no charge to the parties for this service.

As the pilot program gets off the ground, its primary focus will be on cases where financial issues have been, and continue to be, difficult to sort out. Cases where children’s issues are primary and continue to be contested will most likely still be assigned to mediation—although the presiding judge or master will have discretion to assign a case to NCE if either feels (at the pre-trial conference) that NCE is the best option for the parties and counsel.

Karen J. Borgstrom is the director of the Office of Mediation and Arbitration. For more information about Neutral Case Evaluation in Family cases, please contact Borgstrom at or Nancy Miller, Family Division Administrator at

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