CENTER FOR DISPUTE RESOLUTION    

attempted to settle the dispute through face-to-face negotiations?  Could this case be settled though negotiations at the senior management level?  If so, then the cost of a mini-trial can be avoided.

 

Third, is the case comprised predominantly of disputed questions of fact?  Questions of fact are always more amenable to consensual resolution processes than questions of law.  Mixed questions of fact and law may also be appropriate for mini-trial if there is no need for a definitive judgment on the law.  It is better if the legal rules concerned are relatively clear so that a resolution of the disputed facts may clarify the legal outcome.

 

Fourth, do the parties have a business relationship that they wish to maintain?  The relative speed of this process and the cooperation required of the parties make it a useful tool in preserving a working relationship.

 

Fifth, are there numerous parties to the dispute?  The formal structure of the mini-trial is a positive influence in multi-party conflicts.

 

2- Initiating the Mini-Trial Process

 

Once it has been determined that a mini-trial is appropriate, one must obtain the concurrence of the other party(ies).  In general, a mini-trial is introduced later in the life of a dispute than other ADR processes, even after the commencement of legal proceedings.  Nevertheless, since one of the primary benefits of the mini-trial is to save time and expense, it is best to initiate the process before a significant amount of the legal costs have been incurred.

 

Generally, it is legal counsel who suggests the use of the mini-trial.  There is, however, an advantage to be gained in terms of the success of future negotiations if the client contacts the other party(ies) to suggest that perhaps they could “work something out together”.

 

One obstacle to initiating the process is the familiarity of the parties and counsel with the mini-trial.  Obviously, parties will only agree to the process if they are satisfied that it is a fair and workable procedure.  If the client or opposing party(ies) are uncertain, one could provide them with advice or literature on the benefits of the mini-trial.  The process is far more likely to be successful if the parties are comfortable with it and knowledgeable of its advantages and disadvantages.

 

3- Identifying Party Representatives

 

In addition to client personnel who have been involved in the dispute and will assist counsel in preparing for the mini-trial, a representative of senior management must be selected who will sit on the panel with the neutral to hear each party’s submission.  This representative will also be responsible for negotiating a resolution with the other party representatives following the hearing.

This representative should ideally:

 

be selected early in the process so that s/he can help draft the Mini-Trial Agreement – this will ensure that the process suits their needs;

not be associated with the dispute – this will ensure a greater degree of objectivity in their role as panel member and negotiator;

have the authority either to commit to any subsequent negotiated resolution or be able to specify how more senior commitment will be obtained.

 

4- Choosing the Neutral

 

Although one can conduct a mini-trial without the assistance of a neutral, the process is greatly enhanced by having the neutral present.  The neutral may:

 

facilitate communication between the parties, particularly where the dispute is acrimonious;

provide process assistance in drafting the Mini-Trial Agreement;

make determinations on disputed discovery or evidentiary questions;

act as chair of the panel during the hearing and keep the parties on schedule;

issue a non-binding opinion at the close of the hearing regarding either basic strengths and weaknesses of each party’s position or a possible outcome for the case;

act as facilitator or even mediator during the subsequent negotiations;

act as technical expert who gives non-binding opinions on fundamental, disputed issues.

 

The powers that the neutral exercises in any given mini-trial are determined by the parties and expressly laid out in the Mini-Trial Agreement.  The nature of the role that the parties wish the neutral to play (e.g. non-binding arbiter, mediator, technical expert, or even arbiter?) will help determine where the parties want to look to select this key participant.  The parties should clarify between themselves what this role will be before commencing the process.

 

5- Drafting the Agreement

 

The Agreement specifies the rules and procedure which will govern the mini-trial.  Drafting the Agreement is obviously a critical step in the process, one which should be attended to carefully as it will influence the success of the process.  One of the primary advantages of counsel and clients’ role in crafting the Agreement is its resulting flexibility.  Each element of the procedure may be structured by the parties to best fit the dispute at hand.

 

Counsel and party representatives should all participate in drafting the mini-trial agreement.  The neutral may also lend important process assistance and may be given the authority by the parties to make a decision on any disputed procedural step.  An experienced neutral may also be able to advise parties and counsel on what types of procedural choices work best.

What follows is a list of the essential elements to be included in a Mini-Trial Agreement.

 

Description: Briefly describe the dispute and identify the issues in controversy.

Neutral: How will the neutral be selected – it is important that a default mechanism be specified in the event that the parties cannot agree on the choice of neutral.  Critical issues in this respect can be avoided when working with an ADR institution, which generally appoints the neutral.

Powers of Neutral: Specify precisely what the neutral will be empowered to do during the process.  Allow for flexibility as the role required of the neutral may change as the proceeding progresses (e.g. if communication breaks down, parties may realize that they want the neutral to act as mediator during the subsequent negotiations – the parties may also grant the neutral the authority to act as arbitrator once he has established that attempts at reaching a settlement have failed).

Role of Party Representatives and Counsel: The role that panel members, other party representatives and counsel will play should be specified.  For example, the agreement should establish who will be allowed to participate in the subsequent negotiations and in what capacity.

Costs: How will costs be allocated.

Location: Where will the mini-trial take place.

Position Papers: A document summarizing each party’s position is very helpful.  The agreement should specify the length and nature of such a paper in light of the case at hand.  The date by which these papers must be exchanged should also be specified.

Rules of Evidence: The parties may wish to specify their own evidentiary rules to govern the hearing, or may wish to leave such decisions up to the discretion of the neutral.

Schedule: The precise agenda to be followed during the hearing must be carefully spelled out (See the sample Agreement in Annex B). The parties may want to include all or part of the following:

Opening statements

Rebuttal

Witness statements

Examination of witnesses

Questions from panel members

Closing statements

Opinion from neutral

Recess

Timeframe for beginning and end of panel member negotiations and establish how much time should be allocated to each.

Confidentiality: The parties should specify the degree of confidentiality they wish extend to the mini-trial.  Such agreements generally expressly prohibit the neutral from acting as a witness or expert for any of the parties during a subsequent, related proceeding.

Settlement: How will an eventual settlement be recorded?  Will it be in the form of a contract?  A Memorandum of Understanding?  Or other?  Who will be responsible for same?

Termination: The Agreement can specify either what constitutes success or what constitutes such failure to progress that the mini-trial is deemed closed (e.g. should a party fail to participate in good faith with the discovery schedule; or should the senior management representatives be unable to negotiate a settlement within 45 days following the close of the hearing; etc.).

 

A sample mini-trial agreement is found as Annex B.  It includes some of the procedural details that will have to be addressed when drafting your own mini-trial agreement.

 

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6- The Role of Counsel in a Mini-Trial

 

The role of counsel in a mini-trial is not unlike that during litigation.  In general, counsel will prepare their client’s case, handle discovery and the development of witness statements and position papers to be exchanged, and make an abbreviated presentation of the case before the panel.  Unlike litigation, counsel also plays a fundamental role in drafting the Mini-Trial Agreement.

 

Counsel generally plays the role of advocate during the mini-trial.  This differs from the more conciliatory or settlement-oriented role that counsel may play in other ADR procedures such as mediation or negotiation.  In the mini-trial, it is the client representative who will be responsible for negotiating a settlement.

 

 

IV. Advantages of the mini-trial

 

As mentioned, the mini-trial is a settlement technique that aims to facilitate efficient and effective resolution of civil disputes.  A few of the advantages to be gained through the mini-trial process are as follows:

· The expedited procedure is less costly and lengthy than litigation;

· The procedure causes less disruption of business between the parties, which is advantageous if the parties have a business relationship that they wish to continue;

· Resolution of the dispute is in the hands of parties;

· The hearing allows each party to hear the other’s position and to consider the relative strengths and weaknesses of each side;

The degree of preparation required for mini-trial will be very useful for subsequent processes, such as trial, should the mini-trial fail to succeed.

V. Disadvantages of the mini-trial

 

Possible disadvantages of the mini-trial are as follows:

· The effort and expense of the mini-trial may be wasted if the parties could have resolved the conflict through direct negotiations or mediation;

· If unsuccessful, time spent at the mini-trial will have delayed resolution that can be reached through adjudicative proceeding,

CEDIRES

 Center for Dispute Resolution