WHAT IS A MINI-TRIAL?
Mini-trials are actually not trials at all. Though rare, the mini-trial is most often made a part of the mediation process.
Before beginning mediation, the mediator sits as a neutral finder of fact, or judge. The parties present evidence, usually without the formalities of objections and sometimes without even the question and answer format we are so accustomed to seeing in the media. As with so many types of alternative dispute resolution, the parameters of the mini-trial are determined by the litigants before they begin. The case may be presented by the attorney telling the neutral what the evidence would show. It may be presented by the attorney asking his client to explain his position. It may be shown by pictures, videos, documents, or witnesses.
Once the mini-trial is over, the neutral gives his impression of each presentation or simply offers a ruling, which is not binding on either side. The mediation begins as soon as the mini-trial is over.
There are two important things to keep in mind for a mini-trial. First, this is a part of the mediation process, which means nothing is binding on either party unless both sides come to an agreement. Second, deciding what to include and what not to include as evidence in a mini-trial can be tricky. If so much information is presented that the intricacies of either side’s case strategy is divulged, but the mediation is not successful, the opponent will have been given an insight that they will be able to use at a final trial. On the other hand, if not enough information is presented, then the case will appear weak. The neutral will have to rely on that lack of substance and the opponent may take a more aggressive stance, believing their chances at trial to be better. In that event, a reasonable opportunity to mediate successfully may be lost.
An attorney who is both a skilled litigator and negotiator will be able to advise their client on the strategy used for the case, a mini-trial, or mediation. It must all work together to be effective.