Background

A mini-trial is an alternative method for resolving a legal dispute from a formal court trial. Mini-trials, like mediations and arbitrations, constitute unique forms of "alternative dispute resolution" (ADR) favored by courts and litigants alike. There has been a general increase in all forms of ADR in recent years because of the advantages offered: reduced cost, fast resolution, privacy, and less adversity in effect. A mini-trial is really not a trial at all. Rather, it is a SETTLEMENT process in which the parties present highly summarized versions of their respective cases to a panel of officials who represent each party (plus a "neutral" official) and who have authority to settle the dispute. The presentation generally takes place outside of the courtroom, in a private forum. After the parties have presented their best case, the panel convenes and tries to settle the matter.

Mini-Trials Distinguished From Other Forms of ADR

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 minitrial. 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 decisionmakers in a minitrial 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. The answer is two-fold. First, parties involved in a controversy tend to approach and/or perceive the matter subjectively rather than objectively. Parties also tend to inject emotion or BIAS into their negotiations and will seldom compromise unless they have been introduced to damaging information that tends to diminish their claim or defense. Therefore, officials who are one step removed from the controversy, even if they serve as advocates for their respective parties, tend to approach the dispute more objectively. Secondly, the officials at a mini-trial tend to be wellseasoned and experienced in similar matters. For example, they may be representatives of the insurance carrier for the party, or top-level management of a business that is party to a dispute or they may be privatelyretained consultants with technical expertise in the subject matter. For these reasons, they may be better equipped to dissect and sort out opposing EVIDENCE and arguments. Mini-trials also differ from another ADR technique, the "summary trial" or "summary jury trial." Both mini-trials and summary jury trials involve the presentation of each side's case, usually without live TESTIMONY, but with opening and closing statements and an outline of evidence they intend to produce at trial. However, summary trials are actually presented before mock juries, who issue advisory "verdicts." Following a jury determination, the parties and their attorneys will attempt settlement.

Finally, a mini-trial differs from other forms of ADR in that it is usually conducted after formal LITIGATION has already been undertaken. Parties to a lawsuit generally stipulate to "stay" pending litigation (put a hold on further advancement of the litigation) until the mini-trial is concluded. Thus, mini-trial does not, in and of itself, represent an alternative forum for the resolution of a dispute (such as ARBITRATION), but rather it represents a pre-trial alternate attempt to settle the matter before lengthy trial begins. The outcome of the mini-trial is generally confidential and advisory only, and the parties may proceed to trial if settlement negotiations fail.

Mini-trials in Federal Courts

The Alternative Dispute Resolution Act of 1998 (ADRA) (28 USC 651 et seq.) mandates that courts authorize, establish, and promote the use of ADR, including mediation, arbitration, mini-trial and summary jury trial, in all civil actions. Federal district courts maintain their individual discretion to decide at what stage in the litigation process a court may offer ADR to the parties. Local rules establish ADR procedure in the federal courts. The federal government also encourages the use of ADR in general within its own ranks. The Administrative Dispute Resolution Act of 1996 provides a forum for handling disputes within agencies or between citizens and agencies (claims against the government). Federal agencies are free to set up their own procedural ADR programs for the handling of both internal and external disputes. For example, the U. S. CODE OFFEDERAL REGULATIONS (CFR) contains several ADR program provisions for federal agencies that contemplate mini-trials (as one of several alternatives); examples include the Federal Aviation Administration (FAA) (14 CFR 17.45), the Department of Energy (10 CFR 1023.8), and the Department of Housing and Urban Development (24 CFR 7.2).

Mini-Trial : Involving Senior Management

Fees Effective January 1, 2010

Introduction An Overview of the Mini-Trial Process Mini-Trial: Involving Senior Management Getting Started with Mini-Trials The Mini-Trial Process Mini-Trial Procedures Administrative Fees Introduction The American Arbitration Association (AAA) is the world's leading provider of alternative dispute resolution (ADR) services. AAA resolution options, which consists of conflict management processes, neutrals and client assistance, is part of a continuum of dispute resolution options available through the AAA. AAA resolution options assist parties to minimize the impact of disputes by resolving them earlier. This guide outlines the Mini-Trial process, including the steps involved from case initiation through resolution, and covers the procedures utilized in Mini-Trial cases. An Overview of the Mini-Trial Process

Mini-Trial: Involving Senior Management

Mini-Trials are informative and valuable undertakings, as they offer company executives an opportunity to obtain a better understanding of the issues at hand and each party's position in a dispute. A Mini-Trial in its most common form involves representatives from each company presenting the evidence in their case to a panel made up of an AAA neutral or Panel Chair and senior executives from each of the companies in the dispute. A Mini-Trial affords parties the opportunity to both practice and preview the presentations of their own cases, as well as to assess the strength of their adversaries' positions in a case. The less formal setting of a Mini-Trial emphasizes the importance of a business perspective in the dispute, and it provides senior executives with an opportunity to participate more fully in the resolution of company disputes. Mini-Trials may be a consideration for parties when uncertainty or varying opinions exist, inside and outside of organizations, about the value of or the most effective way to present a case. They can also be effective when maintaining relationships is important to future business opportunities, and they can aid the parties in discovery and future litigation or arbitration planning. In addition, when clients are involved in a case with issues of a highly specialized technical nature or subject matter that calls for a neutral with a specific background or level of expertise, a Mini-Trial may be an appropriate option. Getting Started with Mini-Trials The Mini-Trial process is initiated with a written agreement from the parties. Once the case has been opened, the parties are given a list of prospective Panel Chairs that have the requested expertise. The parties may either mutually agree on an individual or ask that the AAA to appoint a neutral Chair from the designated list. The parties and the neutral then schedule a date and time for the information exchange and decide on the formality of the proceedings, the applicability of evidence rules and any other procedural aspects of the Mini-Trial, including the presentation of witness lists. The Mini-Trial Process The neutral Chair presides over the Mini-Trial process, during which each party is allowed to present its evidence or information in an abbreviated "best case" format. Generally, federal or state court evidence rules do not apply in

Mini-Trial presentations and, like Mediations, these proceedings are confidential. At the conclusion of the presentations, senior executives from each company have an opportunity to begin settlement discussions with the AAA neutral acting as conciliator or mediator. If no settlement is reached, the parties can request an advisory opinion from the neutral Chair. These opinions often include a discussion of important issues of law and fact that support the nonbinding opinion. After the delivery of the opinion, the senior executives participating in the panel meet again to have further settlement discussions. The parties can, at this point, request that the neutral act as a mediator if they are seeking a final resolution of the dispute. If the parties want to adopt the Mini-Trial process as a part of their contractual dispute settlement procedures, they may insert the following Mini-Trial clause into their contract in conjunction with a standard Arbitration provision: If a dispute arises out of or relates to this contract, or the breach thereof, the parties agree first to submit their dispute to a neutral advisor pursuant to the American Arbitration Association's Mini-Trial Procedures administered by the American Arbitration Association before resorting to arbitration, litigation, or some other dispute resolution procedure. If the parties wish to utilize a Mini-Trial to resolve an existing dispute, they may complete an ADR Submission Form, a copy of which can be found on www.adr.org. Mini-Trial Procedures MT-1. Initiation of Mini-Trial Any party may initiate a Mini-Trial by sending the AAA the following information: the parties' agreement to a Mini-Trial; the names, addresses and telephone numbers of the parties and their representatives; and c. the appropriate administrative fee.
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MT-2. Appointment of the Neutral Advisor The neutral advisor shall be selected by mutual agreement of the parties. To facilitate the selection process, the AAA will make available to the parties a list of individuals to serve as the neutral advisor. Biographical information on the proposed neutral advisors will be provided to the parties at the same time. MT-3. Qualifications of the Neutral Advisor

No person shall serve as a neutral advisor in any dispute in which that person has any financial or personal interest in the result of the Mini-Trial, except by the written consent of all parties. Prior to accepting an appointment, the prospective neutral advisor shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties. Upon receipt of such information, the AAA shall either replace the neutral advisor or immediately communicate the information to the parties for their comments. In the event that the parties disagree as to whether the neutral advisor shall serve, the AAA will appoint another neutral advisor. The AAA is authorized to appoint another neutral advisor if the appointed neutral advisor is unable to serve promptly. MT-4. Preparation for Information Exchange Discovery between the parties may take place prior to the information exchange, in accordance with the agreement between the parties. Prior to the information exchange, the parties shall exchange written statements summarizing the issues in the case and copies of all documents they intend to present at the information exchange. MT-5. Information Exchange Legal counsel for each party will present their best case at the information exchange. Each party shall have in attendance throughout the information exchange a senior executive with settlement authority. The neutral advisor shall be present at the information exchange to decide questions of procedure and to render advice to the party representatives when requested by them. Federal or state rules of evidence do not apply to presentations made at the information exchange. Any limitation on the scope of the evidence offered at the information exchange shall be determined by mutual agreement of the parties prior to the exchange and shall be enforced by the neutral advisor. MT-6. Settlement Session After the information exchange, the senior executives shall meet and attempt, in good faith, to formulate a voluntary settlement of the dispute. Each party shall have in attendance throughout the settlement negotiation a senior executive with settlement authority. MT-7. Advisory Opinion If the senior executives are unable to settle the dispute, the neutral advisor shall render an advisory opinion as to the likely outcome of the case if it were litigated or arbitrated. The neutral advisor's opinion shall identify the issues of law and fact that are critical to the disposition of the case and give the reasons for the opinion that is offered. MT-8.Additional Settlement Discussions

After the neutral advisor has rendered an advisory opinion, the senior executives shall meet for a second time in an attempt to resolve the dispute. If they are unable to reach a settlement at this time, they may either abandon the proceeding or submit to the neutral advisor written offers of settlement. If the parties elect to make such written offers, the neutral advisor shall make a recommendation for settlement based on those offers. If the parties reject the recommendation of the neutral advisor, either party may declare the Mini-Trial terminated and resolve the dispute by other means. MT-9. Confidentiality Confidential information disclosed to a neutral advisor by the parties or by witnesses in the course of the Mini-Trial shall not be divulged by the neutral advisor. All records, reports or other documents received by a neutral advisor while serving in that capacity shall be confidential. The neutral advisor shall not be compelled to divulge such records or to testify in regard to the Mini-Trial in any adversary proceeding or judicial forum. The parties shall maintain the confidentiality of the Mini-Trial and shall not rely on or introduce as evidence in any arbitral, judicial or other proceeding: a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute during the course of a Mini-Trial; b) admissions made by another party in the course of the Mini-Trial proceedings; c) proposals made or views expressed by the neutral advisor; or d) the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the neutral advisor. MT-1 0. Exclusion of Liability a) Neither the AAA nor any evaluator is a necessary party in judicial proceedings relating to the evaluation. b) Neither the AAA nor any evaluator shall be liable to any party for any act or omission in connection with any evaluation conducted under this process. MT-1 1. Neutral Advisor Fees and Expenses The fees and expenses of the neutral advisor shall be borne equally by the parties, and each party is responsible for its own costs, including legal fees, incurred in connection with the Mini-Trial. The parties may, however, in their written agreement alter the allocation of fees and expenses. Administrative Fees

The nonrefundable case set-up fee is $1,525 per party. In addition, the parties are responsible for compensating the neutral advisor at his or her published rate, for conference and study time (hourly or per diem). Mini-Trial costs are generally borne equally by the parties. The parties may adjust this arrangement by agreement submitted to the AAA in writing. Before the commencement of the Mini-Trial, the AAA shall estimate anticipated total cost and each party shall be required to pay its portion prior to the Mini-Trial session. When the Mini-Trial has terminated, the AAA shall render an accounting and return any unexpended balance to the parties. Parties that have filed an AAA Arbitration and then agree to utilize Mini-Trials will have the Mini-Trial fee waived. In addition, the current AAA Arbitration refund schedule will be extended to allow for a 25% refund of the Arbitration fees if the parties resolve their matter prior to the appointment of the arbitrator(s). PHN CNG BI DCH: theo mu nha mi ngi ^^
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Mini-Trials Distinguished From Other Forms of ADR

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Mini-trials in Federal Courts

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MT-4. Preparation for Information Exchange
Discovery between the parties may take place prior to the information exchange, in accordance with the agreement between the parties. Prior to the information exchange, the parties shall exchange written statements summarizing the issues in the case and copies of all documents they intend to present at the information exchange

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The parties shall maintain the confidentiality of the Mini-Trial and shall not rely on or introduce as evidence in any arbitral, judicial or other proceeding: a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute during the course of a Mini-Trial;

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