Mediation and mini-trial are 2 forms of alternative dispute resolution (ADR). ADR is the use of alternative procedures to resolve disputes without the necessity of a court trial. The US federal courts and most state courts utilize ADR procedures to assist parties in settling their disputes without judicial intervention.
What is mediation?
Mediation is an ADR procedure in which a third party neutral assists the parties to a dispute in negotiating an agreed settlement to the dispute without necessity of a court trial. Mediation may be court ordered or may be done by agreement of the parties. In court ordered mediation, the court appoints a neutral third party to act as a mediator between the parties. In an agreed mediation, the parties will generally select a mutually acceptable mediator. In either case, the mediator’s role is to facilitate negotiations between the parties. The mediator does not render a decision in a case.
How does mediation work?
Once a mediator has been selected, either by court appointment or agreement of the parties, the mediator will usually contact the parties to set a mutually agreeable time and location for the mediation session. At the mediation session, the parties and their respective attorneys appear. Each side usually makes a brief presentation of their case to the mediator and the other side. The mediator then usually separates the parties and shuttles between the parties to conduct negotiations. The mediator tries to help the parties find common ground which can form the basis for a negotiated settlement. If the parties reach a negotiated settlement, then they will prepare a written settlement agreement that is binding upon the parties. If they do not reach a negotiated settlement, then the case will go back to the court for trial. Mediation is confidential and neither side may call the mediator to testify at trial.
What is mini-trial?
Mini-trial is an ADR procedure in which a neutral third party assists the parties in evaluating the relative strengths and weaknesses of their respective cases. Mini-trials are usually conducted by agreement of the parties. Retired or former judges frequently serve as neutrals for mini-trials. Mini-trials are frequently used as a means for corporate executives to understand and evaluate the issues involved in a dispute and each party’s respective position on those issues.
How does mini-trial work?
Once the parties have agreed to have a mini-trial and a neutral has been selected, the neutral will schedule a meeting with the parties and their attorneys. At the meeting, each party will present an abbreviated version of their respective evidence and legal arguments to the neutral and the opposing party. After hearing the evidence and arguments of the parties, the neutral may give an advisory opinion on the likely outcome of the dispute. The neutral may also assist the parties in conducting settlement negotiations. Like mediation, mini-trials are confidential and nonbinding upon the parties, unless a negotiated settlement is reached.
Difference between mediation and mini-trial
The major difference between mediation and mini-trial is that a mediator only facilitates negotiations between the parties. A mediator does not evaluate the case or provide an opinion on the likely outcome of the case. By contrast, the mini-trial neutral hears evidence from the parties and generally gives an evaluation of the likely outcome of the case. Additionally, parties usually do not present evidence at mediation.
Both mini-trial and mediation are useful ADR techniques to help litigants reach a negotiated settlement to their dispute. A mini-trial focuses more on the relative strengths and weaknesses of each party’s case, while mediation allows the parties to search for common ground to negotiate a mutually beneficial agreement.