Mini-Trial

Distinct from any other ADR method, a Mini-Trial involves the top decision makers of the corporations having a dispute by engaging them in the presentation of their respective cases and the subsequent negotiating process. A mini-trial is generally not a binding method unless the parties agree otherwise.

The top executives representing each of the businesses having a dispute hear their own attorneys argue their respective cases as if it were a conventional trial. These executives sit in a panel of three, the third member being a neutral, independent counsellor, previously chosen by the parties themselves from a panel who acts as moderator of the process, as a judge would. The neutral counsellor may act as a mediator or conciliator after the case has been presented to help the executives reach a mutually satisfactory settlement.

While Mini-Trial rules and procedures are nowhere as strict as applicable rules of evidence or procedure in a regular court trial, a meaningful exchange of documentation between the parties will always contribute to strengthening confidence in the process, thereby encouraging a fruitful dialogue on settlement options between the executives involved in the process. However, protocols for the exchange of documentation are agreed to by the parties prior to the commencement of the Mini-Trial.

Both parties must be represented by legal counsel. The independent counsellor acting as President of the Panel must be a licensed practicing attorney, and his functions are limited to:

• Managing the bureaucratic aspect of the process in accordance with a provider's Mini-Trial procedures;
• Issuing a report based on the argument of counsel for the parties, which details the likely outcome of the controversy in a court of law in his own professional opinion;
• Engaging the acting executives in a settlement negotiation based on the offers for settlement previously advanced by each executive to the other;
• Assisting the executives in their negotiating process.

The process

Both parties present their respective arguments in writing at a time set by the neutral to do so. At a minimum, written arguments set forth both factual and legal arguments supported by whatever evidence they deem appropriate.

The neutral sets a date for a hearing where the presence of counsel for the parties and the top decision makers of each company will be required.

The attorney for each party presents his client’s case in an abbreviated manner previously arranged by the parties with the assistance of the neutral as set forth in the provider's procedures.

After having heard counsel’s arguments, the executives  commence settlement negotiations with the aid of the neutral acting as a mediator.

If the executives are unable to reach an agreement, the neutral counselor writes an independent report describing the likely outcome of the matter, were it tried before a regular court of law. Said report generally contains his recommendations for a settlement of the issues presented.

In accordance with most procedures, the executives meet a second time to continue assisted negotiations based on the neutral’s report after having been afforded an opportunity to consult with their respective legal counsel.

If this second stage fails to produce a settlement, then the parties may abandon the process, or they may present their respective final settlement offers to each other through the neutral. Should the parties opt to present final proposals, the neutral issues a second and final report containing his recommendations to each of the parties individually.

If no agreement is reached at this stage, the Mini-Trial may be deemed concluded, and the parties are free to explore additional ADR options.