CENTER FOR DISPUTE RESOLUTION    

 

 

MINI-TRIAL

 

 

A mini-trial is an alternative method for resolving a legal dispute from a formal court trial. Mini-trials, like mediations and arbitrations, constitute unique forms of “alternative dispute resolution” (ADR) favored by courts and litigants alike.

 

There has been a general increase in all forms of ADR in recent years because of the advantages offered: reduced cost, fast resolution, privacy, and less adversity in effect.

 

 

 

Table of Contents

 

 

         What is a mini-trial

         Characteristics of a mini-trial

         How to use the mini-trial

         Advantages of the mini-trial

         Disadvantages of the mini-trial

         Questions and concerns regarding the process

                 Appendix A: Practitioner's checklist

                 Appendix B: Sample mini-trial agreement

 

 

I. What is a mini-trial

 

A mini-trial is really not a trial at all. Rather, it is a settlement process in which the parties present highly summarized versions of their respective cases to a panel of officials who represent each party (plus a “neutral” official) and who have authority to settle the dispute. The presentation generally takes place outside of the courtroom, in a private forum. After the parties have presented their best case, the panel convenes and tries to settle the matter.

 

A mini-trial most resembles a mediation hearing, in that there is a presentation by each party of a summarized version of his or her case to a panel of persons for the purpose of resolving or settling the dispute. Also like mediation, the parties are generally not bound to an outcome, and may end the process at an impasse.

 

However, there is one important difference between a mediation and a mini-trial. In mediation, the mediator is a neutral third party who does not take the side of either party, but instead tries to facilitate open communication between the parties themselves in order to achieve compromise and settlement. Even in court-ordered mediations conducted by a panel of mediators, the focus is still on the parties: the mediators merely issue a recommendation to the parties for settlement consideration.

 

Conversely, in a mini-trial, the mediators themselves are agents and advocates for the parties, and they, rather than the parties, work out a settlement after hearing opposing sides to the controversy (each goes into the mini-trial with advance authorization to settle the matter for a certain dollar amount or under other conditions or criteria). The parties present their cases (usually through their attorneys) but do not take active roles in the settlement negotiations nor generally do their attorneys. The decision-makers in a mini-trial are the actual members of the panel (excepting any neutral member, who may play the role of expert, advisor on substantive law, etc.).

 

One might ask why the parties themselves do not facilitate the settlement directly in a mini-trial.  The answer is two-fold.  First, parties involved in a controversy tend to approach and/or perceive the matter subjectively rather than objectively.  Parties also tend to inject emotion or bias into their negotiations and will seldom compromise unless they have been introduced to damaging information that tends to diminish their claim or defense. Therefore, officials who are one step removed from the controversy, even if they serve as advocates for their respective parties, tend to approach the dispute more objectively.  Secondly, the officials at a mini-trial tend to be well-seasoned and experienced in similar matters.  For example, they may be representatives of the insurance carrier for the party, or top-level management of a business that is party to a dispute or they may be privately-retained consultants with technical expertise in the subject matter.  For these reasons, they may be better equipped to dissect and sort out opposing evidence and arguments.

 

Mini-trials also differ from another ADR technique, the “summary trial” or “summary jury trial.”  Both mini-trials and summary jury trials involve the presentation of each side’s case, usually without live testimony, but with opening and closing statements and an outline of evidence they intend to produce at trial.  However, summary trials are actually presented before mock juries, who issue advisory “verdicts”.  Following a jury determination, the parties and their attorneys will attempt settlement.

 

Finally, a mini-trial differs from other forms of ADR in that it is usually conducted after formal litigation has already been undertaken. Parties to a lawsuit generally stipulate to “stay” pending litigation (put a hold on further advancement of the litigation) until the mini-trial is concluded.  Thus, mini-trial does not, in and of itself, represent an alternative forum for the resolution of a dispute (such as arbitration), but rather it represents a pre-trial alternate attempt to settle the matter before lengthy trial begins. The outcome of the mini-trial is generally confidential and advisory only, and the parties may proceed to trial if settlement negotiations fail.

 

The mini-trial is in essence a structured negotiated settlement technique.  Although designed like an expedited trial, it is actually a means for the parties to hear the other side’s point of view and attempt a negotiated settlement.  If a settlement is not reached, one benefit of the mini-trial is that the parties have already prepared a significant amount of their cases which will be useful for any subsequent trial.  Although there are many variations, the mini-trial in its most common form involves a brief presentation of each parties’ case to a panel made up of senior party representatives with authority to settle.  The panel is chaired by a neutral, selected jointly by the parties or appointed by an ADR institute such as CEDIRES.  At the close of the hearing, the neutral recommends a specific outcome.  The other panel members then attempt to negotiate a resolution, with the evidence presented during the mini-trial and the recommended outcome serving as a basis for the negotiations.

 

The parties establish the powers of the neutral in the mini-trial agreement and are free to define this role as broadly or narrowly as they wish. Among other things, the neutral may be empowered to:

· set the timetable for the hearing if the parties are unable to agree;

· act as chairperson to ensure that the parties adhere to the schedule;

· rule on disputed discovery or evidentiary matters;

· question witnesses or party representatives;

· caucus with parties individually where necessary;

· issue a non-binding, written opinion.

The mini-trial is an entirely voluntary process.  As such, one will enter into a mini-trial only upon consent of all of the parties.  If negotiations fail to result in a resolution, then parties are free to proceed to another method of settlement.

 

 

II. Characteristics of a mini-trial

 

A Mini-Trial is:

Voluntary:

Parties must expressly agree to attempt settlement through the mini-trial process.  The agreement to undergo a mini-trial is generally set out in writing.

Private:

Despite its name, the mini-trial is a non-judicial, expedited procedure generally used in the commercial context.  A panel, comprised of a senior executive from each party and one neutral, selected jointly by the parties or by an ADR institution, hears submissions from each side.

Informal:

There are no fixed procedural or evidentiary rules governing the process.  Rather, the parties agree to a hearing schedule and decide upon a set of governing rules concerning discovery, evidence and witnesses. These rules are set out in the mini-trial agreement.

Assisted:

Following each party’s presentation, the neutral panel chair issues a recommended, non-binding solution.  The party representatives from the panel and their chosen advisors then attempt to negotiate a settlement based upon that recommendation. The neutral may be invited to serve as mediator or facilitator during those negotiations.

Consensual:

Generally, there is no obligation to settle during the mini-trial, nor is the opinion of the neutral binding. Rather, resolutions are achieved through consensus.  The parties are free, however, to structure the process otherwise.

Informative:

Despite the fact that there is no guarantee of resolution, the preparation and execution of the mini-trial gives the parties a better understanding of their own case, as well as an understanding of the opponent’s position. This is quite useful if the parties proceed to trial.

Confidential:

The mini-trial is generally a confidential process.

 

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III. How to use the mini-trial

 

1- When is a Mini-Trial Appropriate?

 

Before discussing the possibility of mini-trial with other parties, one must first ensure that one’s own internal management and key personnel are amenable to the process.

 

If the parties want a greater degree of involvement and control over the outcome than is typically allowed in an adjudicative process, such as arbitration, then a mini-trial is an option.

 

Second, is the dispute substantial enough to justify the effort and expense required for a mini-trial?  Although the mini-trial is indeed faster and less expensive than litigation, it nevertheless entails a significant amount of preparation and cost.  Have the parties first

CEDIRES

 Center for Dispute Resolution