6- The Role of Counsel in a Mini-Trial
The role of counsel in a mini-trial is not unlike that during litigation. In general, counsel will prepare their client’s case, handle discovery and the development of witness statements and position papers to be exchanged, and make an abbreviated presentation of the case before the panel. 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.
IV. 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. A few of the advantages to be gained through the mini-trial process are as follows:
· The expedited procedure is less costly and lengthy than litigation;
· The procedure causes less disruption of business between the parties, which is advantageous if the parties have a business relationship that they wish to continue;
· Resolution of the dispute is in the hands of parties;
· The hearing allows each party to hear the other’s position and to consider the relative strengths and weaknesses of each side;
The degree of preparation required for mini-trial will be very useful for subsequent processes, such as trial, should the mini-trial fail to succeed.
V. 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.
VI. Questions and concerns regarding the process
Are these clauses and agreements enforceable?
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. A party’s success in enforcing the use of the mini-trial clause may well be improved by the addition of an express provision that no legal action may be brought until the mini-trial has been attempted in good faith. Note that one cannot compel a party to actually resolve a dispute through the mini-trial process.
What rights of appeal flow from a mini-trial agreement?
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. With many corporate parties, there may well be instances where an agreement reached during the creative process of negotiation is beyond the scope of the party’s current mandate and the party is required to give but conditional consent pending ratification from the decision-making body of that party. 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.
Appendix A: Practitioner’s checklist
Is a mini-trial appropriate for this particular dispute?
Is the commitment from senior management to undergo a mini-trial present?
Are opposing parties and their counsel willing to undergo a mini-trial?
Have senior management representatives been selected to sit on the panel?
Do the representatives have the authority to settle? If not, is there a process in place to obtain ratification of the agreement reached?
Have the parties selected a third party neutral to chair the panel?
If the parties cannot agree on the selection of a neutral, has a default selection procedure been agreed to (e.g. selection by a neutral organization or individual)?
Have the persons who will present each party’s position been selected?
Have all essential elements of the Mini-Trial Agreement been considered?
Can parties agree upon a schedule for the hearing?
Has the role of the neutral been defined?
Will the proceedings be recorded in any way? If so, have the necessary provisions been made?
Has the location for the hearing been selected?
How will the costs of the process be divided?
How will any eventual agreement be recorded?
Appendix B: Sample mini-trial agreement
BETWEEN ___________________________ (“Party A”)
AND (“Party B”)
Whereas Party A and Party B are parties to a contract dated , and identified as (the “Contract”); and
Whereas a dispute has arisen between the parties concerning the Contract; and
Whereas the parties wish to attempt to resolve this dispute through a mini-trial;
Therefore the parties agree as follows:
[Option] The Mini-Trial shall be conducted pursuant to the procedural rules agreed to by the parties, set forth in Annex A to this Agreement.
[Option] The Mini-Trial shall be conducted pursuant to the Procedural Rules of CEDIRES;
The Mini-Trial shall be conducted before a panel composed of one senior executive officer of each party who has settling authority to resolve the dispute (“designated party representative”), and one neutral advisor. The neutral advisor shall act as chair of the panel.
The neutral advisor shall be appointed by CEDIRES. 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.
1. The parties shall equally bear the costs of the neutral advisor and any common administrative expenses. The parties are solely responsible for the costs of their own counsel and case preparation.
The Mini-Trial shall be conducted at [place], in [city], ________[country], within [e.g. 90] days of the signing of this Mini-Trial Agreement.
[X, e.g. 30] days prior to the date set for the Mini-Trial, each party undertakes to provide all other parties and the neutral advisor with copies of all documents upon which that party intends to rely during the Mini-Trial, with a copy of any written brief or position paper summarizing the party’s position in the dispute, and a list of all witnesses to be called, if any and the name of the senior executive that will sit on the panel with the neutral advisor.
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:
[Schedule with time for each presentation specified, according to the needs of the dispute at hand, (e.g. 9:00 - 10:00 Party A’s Case; 10:00 - 11:00 Party B’s Rebuttal, etc.) (Mini-Trials may take from a few hours up to a number of days)]
There shall be no recording of the proceedings made.
Within [X] days of the close of the hearing, the neutral shall render a non-binding opinion as to the resolution of the dispute.
Within ten days following receipt of the neutral’s opinion, the designated party representatives shall meet to negotiate a resolution of the dispute. If the parties agree, other party representatives or the neutral advisor may be present at those negotiations.
All information exchanged during this entire procedure shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. 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.
Sources: adapted by Holmes Kirby from: Department of Justice, Canada (http://www.justice.gc.ca/eng/pi/dprs-sprd/ref/res/drrg-mrrc/05.html#) and from http://www.enotes.com/dispute-resolution-alternatives-reference/mini-trials (Encyclopedia of Everyday Law, ©2003 Gale Cengage). All Rights Reserved.