Mini Trials -- More like a Mini Cooper S than a Minivan
Mini Trials — another form of ADR that is drastically underused. Just as I wrote about mock trials last week, mini trials are a great way to work towards resolution that is, sadly, frequently overlooked.
Attorneys are creatures of habit. Heck, the whole premise of litigation is stare decisis (the obligation of courts to follow historical cases when making a ruling on a similar case) which means lawyers are forever cognizant of what’s happened previously. The flip side of this is, however, that lawyers don’t generally like to try new things. So, unless you’ve done a mini trial before, or you know a bunch of lawyers who have and can tell you about it/guide you though it, you’re probably not anxious to take the leap and try a mini trial.
First lets’ define it. A mini trial as defined by the ABA, is “is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a trial. The presentations are observed by a neutral advisor and by representatives (usually high-level business executives) from each side who have authority to settle the dispute. At the end of the presentations, the representatives attempt to settle the dispute. If the representatives fail to settle the dispute, the neutral advisor, at the request of the parties, may serve as a mediator or may issue a non-binding opinion as to the likely outcome in court.”
And taking it to the next step, because mini-trials are done by agreement, the parties are free to agree (pretty much) on however they want to conduct the proceedings. And while mini-trials are more commonly found in the business litigation arena, they can also be used in other areas too, like personal injury or malpractice.
Face it, by the time a case gets to trial, there is very little left unknown. Each party knows the other party’s case fairly well. The likelihood of losing an advantage because of a surprise being divulged is really minimal, though the fear of it may be palpable.
But if you have the opportunity to “put on” your client’s case and let your client see the other side’s case, all while gaining the input of a neutral who is vested in settlement, aren’t you doing your clients a disservice by having mini-trials in your handy-dandy ADR quiver? They are, in the end, a quick and sexy way to get a resolution, kinda like a Mini Cooper S, whereas trials are the dodgy slow minivan. Wouldn’t you rather star in the Italian Job rather than National Lampoon’s Vacation remake in 2015?
