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Dan Simon, M.A., J.D.

5 Reasons Early Neutral Evaluation (ENE) is a Bad Choice for Divorce in Minnesota

IT WORSENS THE CONFLICT: If you and your spouse disagree about some aspect of your divorce, there’s one sure way to worsen that conflict. ENE. If you add in an evaluator who pretends to know what a judge would do, it adds tension and fear to the situation. The possibility that the ENE Evaluator will tell you that the law is against you on something that’s very important to you, makes it entirely natural for you to get defensive and to do your best to plead your case to the ENE Evaluator. Your spouse of course has the same incentive to plead their case. When you plead your case it only increases your spouse’s anger and distrust toward you. And when your spouse pleads their case, it only increases your anger and distrust toward them. Even if the ENE Evaluator agrees with you, you are now worse off than you were before, because your spouse feels like s/he is being bullied and threatened. S/he is likely to fight back by escalating the litigation, or worse, by temporarily agreeing but then lashing out at you in whatever way s/he can going forward.

IT’S BASED ON A LIE: The idea that an Early Neutral Evaluator can predict what the judge will do is a lie. Notice how your lawyer won’t predict what the judge will do? That’s because your lawyer knows it’s a crapshoot. I’m not sure whether ENE Evaluators actually believe that they can predict these things. Assuming they know that it’s ridiculous to pretend they can predict the judge’s ruling, the ENE Evaluators must justify it by telling themselves they’re helping you. They must think that by threatening you and/or your ex into coming to an agreement, they are at least saving you from continued litigation. ENE does lead to agreements sometimes, but the side effects and backlash aren’t worth it. So, best case scenario, the ENE motivates you to come to an agreement, and somehow that agreement doesn’t increase the resentment –that would be great if it happens to work that way for you. But don’t imagine that the agreement is the same as what the judge would have ordered. I mean it could be – but that would be a coincidence.

IT SETS A BAD PRECEDENT: Especially if you have kids, the worst case scenario for parenting them is if you or your spouse believe that the law is where the answers are. That is, when you disagree in the future about something, you might be in the habit of getting legalistic about it. ENE creates a self-fulfilling prophecy. Once you believe that the law is what provides the answers, it will be very hard for you to agree in the future. The law is always debatable. The healthier choice is to do the hard work of figuring out how to help each other out going forward. You can rise above relying on the law. ENE sends you the wrong direction.

ALL ENE EVALUATORS ARE BIASED. It’s true. Every human is biased. I am. You are. Judges are. What the ENE says is a product of his/her biases. (The have all kinds of biases – the most harmful one they have, as far as I can tell, is their belief that subjecting you to ENE is morally acceptable). It’s healthier for your kids if you and your spouse figure out how to get back to relying on your biases, that is, your values, your idea of what good parenting is, and your idea of what’s fair financially. It’s better for you to make your own decisions about what’s right financially.

IT’S THE SORT OF PROCESS LAWYERS WOULD COME UP WITH: You know that you’d rather not have to use a lawyer. You also know that treating your spouse as a legal adversary doesn’t feel right. So don’t subject yourself to ENE, which makes all of the same unhealthy assumptions that the rest of the legal system does. Like the rest of the legal system, it assumes you can’t make your own choices, and that you and your spouse can’t possibly work with each other. It imposes rules on you that can’t possibly be perfectly tailored to your situation. These laws were made by the legislature, and since when do you trust THEIR judgment? ENE is very comfortable for lawyers, because it’s all about the law. Lawyers spend their lives acting as if the law is important. If the law is important, lawyers are important. As for what’s right for you, your spouse and your kids, the law has very little to do with it.