EXPLORING MINI-TRIALS: A LESS POPULAR ADR MECHANISM BY OLABIMPE ADEDAMOLA

The ADR Society, UNILAG.
Apr 1, 2022
4 min read

1.0. ABSTRACT

The use of ADR as a supplementary or recourse to the traditional system of litigation has become popular in the world at large. Parties enjoy the quick resolution of their disputes at the same time protects their privacy through the process. However, some ADR methods are more common than others for various reasons. Mediation, Negotiation, Conciliation, and Arbitration are arguably the most common ADR methods employed in the world. This article places a focus on a lesser-known ADR mechanism which is mini-trials. It explores what they entail, how they differ from a similar form of ADR and when they can be appropriately and effectively harnessed.

2.0. INTRODUCTION

Before the scope and definition of mini-trials are examined, it is important to note that there are binding and non-binding forms of ADR. Mini trials are of the latter sort which means parties can choose whether or not to be bound by the results of the process.

Contrary to what the name suggests, a mini-trial is not a trial at all. To start with, the entire process takes place outside of a courtroom. The mini-trial is conducted under an agreement of the parties.

A mini-trial allows variation in its processes due to its flexibility like all ADR mechanisms. The parties may choose to proceed without employing the service of counsels. However, it is not recommended that parties facilitate the settlement directly. This is because parties involved in a dispute are more likely to infuse their emotions and biases into the negotiations. This will also make them less likely to come to a compromise that frustrates the process. Using counsels will ensure the reduction of the likelihood of this problem. Though the counsels are representatives of the parties, they are still further removed, emotionally, from the dispute which makes their use imperative.

3.0. THE PROCESS OF MINI-TRIALS

Summarily, in a mini-trial, each party and counsel (or attorney) for the party present their position before an impartial third party to define the issues present and develop feasible and realistic settlements.

In a mini-trial, the representatives of each party summarize their version of the events which took place to a panel of officials who are considered the impartial third party and who have the authority to settle the dispute. There are no fixed procedural rules. The parties themselves discuss and decide on the set of rules they want to be governed by. The rules will pertain to the presentation of evidence, bringing and questioning of witnesses, and other material issues contained in the agreement.

The Agreement also describes the details of the dispute and the issues to be resolved. It further provides for the process through which the neutral third party will be selected, the powers they will have, the schedule of the parties, cost, location, settlement, termination, and the likes. The importance of the Agreement cannot be overstated and parties are encouraged to be active in the drafting process.

After the representatives of the parties have presented their case and requests, the panel then convenes and recommends a solution on which the parties alongside their counsels can base their settlement.

4.0. DISTINGUISHING BETWEEN MINI-TRIALS AND MEDIATION

Mini-trials have often been likened to mediation hearings, and while they are similar they are also incredibly different mechanisms. In mediation, the neutral third party facilitates communication between the parties and helps them reach a compromise. In mini-trials, the neutral third party acts as an advocate of the parties and also comes up with solutions.

In mediation, the focus is placed on the disputing parties as they discuss and bring a solution that benefits them both. Conversely, in mini-trials, the parties do not play active roles in the settlement process. This is within the functions of the panel and any other neutral third party. Furthermore, a mini-trial is often conducted before an actual trial in a traditional court. The mini-trial is an option for parties to avoid the lengthy and tiring process of dragging out a trial in court.

5.0. WHEN ARE MINI-TRIALS APPROPRIATE?

A significant amount of preparation goes into a mini-trial and they can often be costly. Also, they are usually considered much later in the dispute resolution process; sometimes, even after traditional litigation has been initiated but before the traditional trial starts.

It is imperative to note that disputes relating to questions of facts are more suited to mini-trials. This is because questions of law are set in stone according to what the law states, while disputes mainly concerned with questions of facts are more flexible, and the parties will be more willing to compromise.

Furthermore, before a mini-trial is initiated, it must be determined that the dispute is substantial enough to warrant the preparation of a mini-trial. This is because if the mini-trial fails, the possibility of the parties resorting to litigation is higher. It is recommended that parties first explore negotiations to avoid the cost of a mini-trial.

Lastly, mini-trials are often better suited to disputes involving multiple parties as a mini-trial has a definitive structure that facilitates easier communication and presentation of issues for parties.

6.0 CONCLUSION

Mini-trials, though less popular than other forms of ADR mechanisms due to the preparation that goes into them and the way they are tailored to certain disputes, is a fast way to resolve commercial disputes. They also allow parties involved to exercise a degree of influence on the outcome of settlement of the disputes. The less popular use of mini-trials can be attributed to them being a form of last resort mechanism, but this does not diminish their importance and contribution to the effective resolution of disputes as an ADR mechanism.