Mini-Trials Distinguished From Other Forms of ADR

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.


Inside Mini-Trials Distinguished From Other Forms of ADR