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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 clients 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 counsels 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 neutrals 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.
What is mini-trial?

Mini-trial is an ADR procedure in which a neutral third party assists the parties in evaluating the relative
strengths and weaknesses of their respective cases. Mini-trials are usually conducted by agreement of
the parties. Retired or former judges frequently serve as neutrals for mini-trials. Mini-trials are
frequently used as a means for corporate executives to understand and evaluate the issues involved in a
dispute and each partys respective position on those issues.

How does mini-trial work?

Once the parties have agreed to have a mini-trial and a neutral has been selected, the neutral will
schedule a meeting with the parties and their attorneys. At the meeting, each party will present an
abbreviated version of their respective evidence and legal arguments to the neutral and the opposing
party. After hearing the evidence and arguments of the parties, the neutral may give an advisory opinion
on the likely outcome of the dispute. The neutral may also assist the parties in conducting settlement
negotiations. Like mediation, mini-trials are confidential and nonbinding upon the parties, unless a
negotiated settlement is reached.

Difference between mediation and mini-trial

The major difference between mediation and mini-trial is that a mediator only facilitates negotiations
between the parties. A mediator does not evaluate the case or provide an opinion on the likely outcome
of the case. By contrast, the mini-trial neutral hears evidence from the parties and generally gives an
evaluation of the likely outcome of the case. Additionally, parties usually do not present evidence at

Both mini-trial and mediation are useful ADR techniques to help litigants reach a negotiated settlement
to their dispute. A mini-trial focuses more on the relative strengths and weaknesses of each partys case,
while mediation allows the parties to search for common ground to negotiate a mutually beneficial