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Minitrial

parties adviser neutral exchange

A private, voluntary, and informal type of ALTERNATIVE DISPUTE RESOLUTION.

The minitrial is an alternative dispute resolution (ADR) procedure that is used by businesses and the federal government to resolve legal issues without incurring the expense and delay associated with court litigation. The mini-trial does not result in a formal adjudication but is a vehicle for the parties to arrive at a solution through a structured settlement process. It is used most effectively when complex issues are at stake and the parties need or wish to maintain an amicable relationship.

Though minitrials can be arranged under rules negotiated by the parties, they usually conform to procedures used by facilitators of ADR. The parties sign an agreement consenting to a minitrial and then each chooses a management representative to sit on the panel. These representatives have the authority to negotiate a settlement. The parties also select a "neutral adviser" to sit on the panel. The adviser must be independent and impartial, as this person will moderate the minitrial. If the parties cannot agree on a neutral adviser, the ADR facilitating agency may make the selection. The parties pay an equal share of the adviser's fees and bear their own minitrial costs.

Prior to the minitrial the parties select and then provide the neutral adviser with background materials. The parties also file legal briefs and exhibits with the adviser that contain information they intend to present at what is termed the "information exchange." This exchange is, in effect, the minitrial. The parties must agree on the length of briefs and the due dates for documents.

At the information exchange each party makes presentation, and each party is entitled to make a rebuttal. As with all other procedures, the parties must either agree on the lengths of their presentations and rebuttals or let the neutral adviser set the time limits. During this information exchange the neutral adviser acts as a moderator rather than a judge. Factual witnesses and expert witnesses may also make presentations. The members of the panel may ask questions of the presenters. In addition to the lawyers representing the parties, each management representative may have advisers in attendance.

After the conclusion of the information exchange, the management representatives meet by themselves to see if they can resolve the dispute. The information exchange should have revealed the strengths and weaknesses of each party's case and motivated the representatives to settle the dispute. If they cannot resolve the dispute on their own, they may ask the neutral adviser to meet with them separately, or jointly, and give an oral opinion on the issues and the likely outcome at trial of each issue. The representatives may also ask the neutral adviser to issue a written opinion and to mediate the negotiations and settlement terms.

If an agreement is reached it is set out in writing and signed by the representatives. The agreement is legally binding on the parties. If the parties cannot settle, the proceedings will terminate 30 days after the date of the information exchange.

An important difference between a court trial and a minitrial is that the RULES OF EVIDENCE do not apply at the minitrial except for the rules governing PRIVILEGED COMMUNICATIONS and attorney work product. Another difference is that minitrials are not recorded, so no transcript can be produced. Finally, the proceedings are totally confidential and any offers or statements made in the process are inadmissible at a court trial.

FURTHER READINGS

Mayer, Bernard. 2000. The Dynamics of Conflict Resolution.

New York: Jossey-Bass.

Moore, Christopher W. 2003. The Mediation Process: Practical Strategies for Resolving Conflict. 3d ed. New York: Jossey-Bass.

Nolan-Haley, Jacqueline. 2001. Alternative Dispute Resolution in a Nutshell. 2d ed. St. Paul, Minn.: West.

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