Doubting whether to litigate? Ask a former judge for advice.

Increasingly, parties at this stage are choosing a strategic intermediate step: a non-binding assessment by a former judge. This practice, also known as early neutral evaluation, provides clarity without entering into a legal battle — and opens the door to a more constructive route.

As a mediator, I see how valuable this can be, especially for parties who are considering litigation.

What exactly is it?

In a non-binding assessment, both parties — often with support from their lawyers — submit the dispute to an authoritative third party: a former judge, emeritus professor or experienced arbitrator. Based on the facts, the parties’ positions and relevant case law, this expert provides a preliminary assessment of the legal position of both parties.

The assessment is not binding, but it does provide direction: what are the chances of success in court? How strong are the arguments? What risks do both sides face?

What are the benefits?

1. A reality check for both sides

Parties receive a legally substantiated and independent assessment of their position. This prevents them from overestimating the strength of their own case — something that surprisingly often occurs on both sides of a dispute.

2. Support for mediation or settlement

Once a neutral third party has clarified the playing field, there is often room for reconsideration. Lawyers can advise their clients more effectively. Mediation suddenly becomes a realistic and promising option.

3. No loss of face, but progress

An assessment by a former judge provides legitimacy for the decision not to litigate. Especially in complex commercial disputes where the pressure is high, this can be extremely valuable.

4. Saving time and costs

An early independent assessment often prevents years of litigation and excessive costs. Parties who understand their position can make smarter decisions.

5. Confidentiality guaranteed

As with mediation, the process is confidential. The outcome is not published and cannot be used in any potential legal proceedings.

For what types of conflicts?

Commercial disputes with significant stakes, where both parties are considering litigation

Shareholder or family disputes where relationships are under pressure

Contract interpretation disputes where both sides strongly adhere to their own interpretation

Disputes involving public or political sensitivity, where preserving reputation is crucial

Mediation processes in preparation, to help parties assess the feasibility of reaching a solution

A practical example

Two partners in a joint venture are on the verge of taking each other to court following a dispute about profit sharing and decision-making authority. They request a non-binding assessment from a former appellate judge. His analysis — clear and legally substantiated — shows that both parties face significant risks. Within two weeks, an invitation to mediation is on the table. Eight weeks later, a sustainable settlement has been reached.

Conclusion

A non-binding assessment by a former judge is not a sign of weakness. On the contrary: it is a powerful strategic step for parties who are seriously considering litigation, but who are also willing to take responsibility for achieving a faster and more elegant solution.

Are you uncertain about the next step in a conflict? Do not immediately ask the court — first ask a former judge.