The role of counsel in a mini-trial is not unlike that during litigation. 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.
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 trial-like nature of the preparation and hearing may continue to polarize the positions of the parties rather than promote an atmosphere of cooperation from the outset. While mediation and arbitration clauses are now generally enforceable, other methods are, in many countries, not governed by legislation.
The courts, however, may be willing to uphold ADR agreements, first as a contractual obligation; second by likening the ADR agreement to an agreement to arbitrate, the latter being specifically enforceable; and third in recognition of the fact that public policy favours alternatives to litigation where these alternatives serve the interest of the parties and of judicial administration.
A valid clause committing the parties to submit to a mini-trial to resolve a particular dispute may well be enforced by the courts. Note that one cannot compel a party to actually resolve a dispute through the mini-trial process.
Because the mini-trial is consensual in nature, there is no right of appeal. It is obvious that a party cannot appeal from a settlement that the party itself willingly entered. If that willingness or knowledge of a party is in question, or if a problem arises as to the implementation of the agreement, then recourse lies with the court, not as a matter of appeal but as a question of first instance under contract law.
One very important element of any collaborative process is the authority of all of the parties at the table to commit to an agreement, once reached. In the context of a mini-trial, this authority is required at the negotiating stage which follows the panel hearing.
The key in such a situation is to obtain that consent as quickly as possible so that the agreement that the parties worked so hard to craft does not fail for lack of momentum or commitment from the party requiring authorization. What one is left with then is the need for a rapid and definite procedure by which the representative needing formal party approval, will seek ratification of the negotiated agreement from the appropriate decision-maker.
This procedure can be set forth in the Mini-Trial Agreement. Do the representatives have the authority to settle? If not, is there a process in place to obtain ratification of the agreement reached? If the parties cannot agree on the selection of a neutral, has a default selection procedure been agreed to e.
Whereas Party A and Party B are parties to a contract dated The neutral advisor shall act as chair of the panel. Any party may promptly disclose to the other any circumstances known to it which cast reasonable doubt upon the neutrality of the advisor chosen by CEDIRES.
Unless all parties agree otherwise, that neutral will not serve on the panel and a new one will be chosen. If any litigation between the parties regarding this same dispute is pending, the parties shall not take any new steps in that legal proceeding during the course of this Mini-Trial.
During the hearing, counsel or a designated representative from each party will present its case to the panel, with time for rebuttal, question period for the panel and the parties and closing remarks as follows:. Mini-Trials may take from a few hours up to a number of days ]. Within [X] days of the close of the hearing, the neutral shall render a non-binding opinion as to the resolution of the dispute. If the parties agree, other party representatives or the neutral advisor may be present at those negotiations.
However, evidence that is independently admissible shall not be rendered inadmissible by virtue of its use during the mini-trial. It is agreed that the neutral will neither represent nor testify on behalf of any of the parties in any subsequent proceeding between them. The Mini-Trial proceedings shall be deemed terminated either: a upon execution of a written settlement between the parties, or b upon the forty-fifth 45 day following conclusion of the Mini-Trial hearing, which date can be extended by mutual agreement of all the parties, or c upon receipt by the neutral advisor of written notice of withdrawal from one or more of the parties; whichever occurs first.
In case the neutral finds, at his discretion, that chances of success of the Mini-Trial have become remote, the proceedings shall continue as arbitration proceedings under the CEDIRES Rules of Procedure.
All Rights Reserved. What is a mini-trial? 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.
Characteristics of a mini-trial A Mini-Trial is: Voluntary: Parties must expressly agree to attempt settlement through the mini-trial process. Private: Despite its name, the mini-trial is a non-judicial, expedited procedure generally used in the commercial context. Informal: There are no fixed procedural or evidentiary rules governing the process. Consensual: Generally, there is no obligation to settle during the mini-trial, nor is the opinion of the neutral binding.
Confidential: The mini-trial is generally a confidential process. When is a Mini-Trial Appropriate? 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. This representative should ideally: - be selected early in the process so that he or she 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.
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. Drafting the Agreement The Agreement specifies the rules and procedure which will govern the mini-trial. 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. Costs: How will costs be allocated. Location: Where will the mini-trial take place. 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.
The Role of Counsel in a Mini-Trial The role of counsel in a mini-trial is not unlike that during litigation. 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. 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 such as arbitration or trial except if the procedure continues like an arbitration in case of a deadlock or impasse ; The trial-like nature of the preparation and hearing may continue to polarize the positions of the parties rather than promote an atmosphere of cooperation from the outset.
Questions and concerns regarding the process Are these clauses and agreements enforceable? What rights of appeal flow from a mini-trial agreement? Authority One very important element of any collaborative process is the authority of all of the parties at the table to commit to an agreement, once reached. Is the commitment from senior management to undergo a mini-trial present? As mentioned above, the judge and jury generally will not know how much money was offered during a mediation.
If the jury comes back with less money than was discussed in a settlement meeting, you cannot go back and settle the case out of court. Once you have begun a trial process, any and all settlement offers made in the past no longer apply. Contact The Young Firm today with any questions you might have about your case and how to settle it. Our attorneys are here to address any concern or question you have. How long do you have to file? How Do Claims Work?
How long does it take to settle? Attorneys Timothy J. Young Tammy D. Harris Megan C. Misko Joseph B. Get Answers. Move Forward. Close Menu. A Settlement vs. Going to Trial? You must have JavaScript enabled in your browser to utilize the functionality of this website.
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.
0コメント