Litigation Strategy Settlement Negotiation

When You Can’t Settle, Consider a Mini-Trial

Boy (5-7) making pinching gesture, close-up of handA mini-trial is basically a sophisticated settlement conference. When you have complex questions of mixed law and fact, a mini-trial may be your best way forward.

A mini-trial is a voluntary, confidential, and nonbinding procedure consisting of an informal, summary presentation of each party’s best case by the attorneys and experts. Mini-trials can be a useful alternative for narrowing issues when summary judgment or adjudication is not on the table.

With a mini-trial, the case is generally presented to business executives, one from each side of the dispute, who have the authority to negotiate a settlement. A neutral adviser may preside over the mini-trial and offer an advisory opinion to facilitate settlement.

As with all alternative dispute resolution mechanisms, the mini-trial is flexible and can be structured to meet the parties’ particular needs.

Here’s how it usually goes:

  • the parties agree to a basic framework and set the ground rules;
  • the parties exchange information informally before trial unless the dispute is in the advanced stages of litigation, in which case they continue formal discovery procedures;
  • the hearing generally lasts from half a day to 4 days; and
  • the attorneys and experts can present their cases to their best advantage, ask questions directly, and use exhibits and visual aids liberally.

After hearing all the evidence, the party representatives withdraw from the attorneys, the neutral adviser, and the parties emotionally involved in the dispute. These representatives then attempt to negotiate a resolution based on sound business judgment and expertise.

A potential disadvantage of the mini-trial is that it gives a less than candid party an opportunity to get information without showing its hand until trial. If the case doesn’t settle after the mini-trial, the less disclosive party may take advantage of the disclosed trial strategies of the other side. But in most cases subsequent discovery will minimize this risk.

Learn more about using mini-trials and many other alternative disputes resolutions processes, in CEB’s California Civil Procedure Before Trial, chap 45.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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