How Neutral Assessment Works

In neutral assessment, an experienced person is asked to give an opinion about the dispute. The "assessor" is often an attorney who has practiced law in similar types of cases. The assessor helps each side better understand the dispute, and problems in their own case. This can lead the parties into a negotiating a settlement. In some cases in Contra Costa County, a judge will ask the parties to participate in a neutral assessment before the judge sets the trial date. Neutral assessment can same the time, risk and difficulty of going to a trial.

• Choosing a neutral assessor: The assessor is neutral, and does not take sides. Attorneys and retired judges experienced in the area of the dispute (example: personal injury claim) often provide these services, usually for a fee.)

• Expert opinion: In neutral assessment, the neutral is experienced and can ask important questions so that both sides understand the dispute better. It is an objective opinion, and may be different from an attorney representing a party (who is a paid advocate). The neutral assessor gives an opinion on liability, on both sides claims and defenses, and on the question of damages. The neutral’s opinion is not binding. But, as in medicine, a "second opinion" (other than your own or your attorney) can be very helpful.

• Neutral assessment meeting: Before the neutral assessment meeting, each party must write a summary explaining the dispute and attach documents showing damages. This "summary for neutral assessment" report is sent to the other parties and to the neutral assessor before the neutral assessment meeting. At the meeting, the parties and their attorney (if any) are required to attend. The parties talk about their case, and the neutral assessor asks questions. These questions are very important, because they reveal what the important problems (issues) may be in the dispute. The neutral assessor will then give his or her expert opinion about liability and damages.

Example: in the sample car crash case, the neutral assessor may ask questions about what the plaintiff did to avoid the accident. This can lead the plaintiff understand that, at court, the judge or jury may not accept her position that she acted reasonably. The plaintiff may learn that the defendant’s liability may be reduced by the percentage which the plaintiff was at fault (comparative fault). The plaintiff’s damages at trial may be reduced by the percentage of comparative fault. If the neutral believes the plaintiff is 40 percent at fault in causing the accident, the $20,000 damages the plaintiff might win would be reduced to $12,000 (60% X $20,000).

• Settlement after neutral assessment: You may choose to settle your case after neutral assessment. Before the neutral assessment, you may not have heard what an expert thinks about the dispute. You may have an exaggerated opinion about what damages you may get at trial.

Example: in a personal injury case, you may believe your damages are $125,000 or more. You may think the judge will award you "emotional distress," or compensate you with money for time spent preparing for trial. The neutral assessor may explain why, in her experience, you may be awarded $20,000 at trial, or that "emotional distress" and other damages will probably not be awarded in your case. Although you may not want to hear what the neutral assessor says, it may give you a reason to settle your case.

• Being prepared for trial, or avoiding trial. The neutral assessment can give you a clear picture of your case and what you need to prepare for trial. Or, as you move forward, you may later decide to negotiate a settlement. With an expert opinion, you are informed about your case by someone whose knowledge you respect.

Example: in a contract case, the neutral assessor may say that you need an expert opinion about an issue, such as the custom in a trade or industry. If you are later unable to find an expert who agrees with your position, you can go back to Alternative Dispute Resolution or try to negotiate a settlement with the other side.

• Confidentiality: The neutral assessor’s opinion is confidential, and cannot be used with the judge or later if the dispute goes to trial (See, California Evidence Code Section 1152). The goal is to have each side understand the dispute better, to encourage settlement, and to allow parties to make an informed decision. The neutral assessor will only report that he or she has completed a neutral assessment. The information learned by the neutral is confidential. He or she cannot be used as an expert at trial. Neither party can compel the neutral to testify at trial about what happened at the neutral assessment meeting.