F Accreditation Policies and Procedures for CME. Applications must be accompanied by an application fee as approved by the Indiana Supreme Court. Applications received more than thirty 30 days after the conclusion of a course must include a late processing fee.

The Commission shall approve the course, including law school classes, if it determines that the course will make a significant contribution to the professional competency of mediators who attend.

In determining if a course, including law school classes, meets this standard the Commission shall consider whether:. a the course has substantial content dealing with alternative dispute resolution process;.

b the course deals with matters related directly to the practice of alternative dispute resolution and the professional responsibilities of neutrals;.

c the course deals with reinforcing and enhancing alternative dispute resolution and negotiation concepts and skills of neutrals;. d the course teaches ethical issues associated with the practice of alternative dispute resolution;.

e the course deals with other professional matters related to alternative dispute resolution and the relationship and application of alternative dispute resolution principles;. f the course deals with the application of alternative dispute resolution skills to conflicts or issues that arise in settings other than litigation, such as workplace, business, commercial transactions, securities, intergovernmental, administrative, public policy, family, guardianship and environmental; and,.

g in the case of law school classes, in addition to the standard set forth above the class must be a regularly conducted class at a law school accredited by the American Bar Association. a Legislative, lobbying or other law-making activities.

b In-house program. The Commission shall not approve programs which it determines are primarily designed for the exclusive benefit of mediators employed by a private organization or mediation firm.

Mediators within related companies will be considered to be employed by the same organization or law firm for purposes of this rule. However, governmental entities may sponsor programs for the exclusive benefit of their mediator employees. d Courses or activities completed by self-study.

e Programs directed to elementary, high school or college student level neutrals. Any sponsor may apply to the Commission for approval of a course. The application must:. a be received by the Commission at least thirty 30 days before the first date on which the course is to be offered;.

b Include the nonrefundable application fee in order for the application to be reviewed by the Commission. Courses presented by non-profit sponsors which do not require a registration fee are eligible for an application fee waiver.

Courses presented by bar associations, Indiana Continuing Legal Education Forum ICLEF and government or academic entities will not be assessed an application fee, but are subject to late processing fees. Applications received less than thirty 30 days before a course is presented must also include a late processing fee in order to be processed by the Commission.

Either the provider or the attendee must pay all application and late fees before a mediator may receive credit. Fees may be waived in the discretion of the Commission upon a showing of good cause.

c contain the information required by and be in the form set forth in the application approved by the Commission and available upon request;. d be accompanied by the written course outline and brochure used by the Sponsor to furnish information about the course to mediators; and.

If the application for course approval is made before attendance, this affidavit and certification requirement shall be fulfilled within 5 thirty 30 days after course attendance. Attendance reports received more than thirty 30 days after the conclusion of a course must include a late processing fee.

Course applications received more than 1 one year after a course is presented may be denied as untimely. A mediator may apply for credit of a live course either before or after the date on which it is offered.

a be received by the Commission at least thirty 30 days before the date on which the course is to be offered if they are seeking approval before the course is to be presented. If the applicant is seeking accreditation, the Sponsor must apply within thirty 30 days of the conclusion of the course.

b include the nonrefundable application fee in order for the application to be reviewed by the Commission. If the application for course approval is made before attendance, this affidavit and certification must be received by the Commission within thirty 30 days after course attendance.

An attendance report received more than thirty 30 days after the conclusion of a course must include a late processing fee. Course applications received more than one 1 year after a course is presented may be denied as untimely.

G Procedure for Resolving Disputes. Any person who disagrees with a decision of the Commission and is unable to resolve the disagreement informally, may petition the Commission for a resolution of the dispute.

The person filing the petition shall have the right to attend the Commission meeting at which the petition is considered and to present relevant evidence and arguments to the Commission.

The rules of pleading and practice in civil cases shall not apply, and the proceedings shall be informal as directed by the Chair.

The determination of the Commission shall be final subject to appeal directly to the Supreme Court. H Confidentiality. Filings with the Commission shall be confidential.

These filings shall not be disclosed except in furtherance of the duties of the Commission or upon the request, by the mediator involved, or as directed by the Supreme Court.

I Rules for Determining Education Completed. The number of hours of continuing mediation education completed in any course by a mediator shall be computed by:. a Determining the total instruction time expressed in minutes;. b Dividing the total instruction time by sixty 60 ; and.

Stated in an equation the formula is:. Instruction time is the amount of time when a course is in session and presentations or other educational activities are in progress.

Instruction time does not include time spent on:. a Four 4 hours of approved continuing mediation education for every hour spent in presentation. b One 1 hour of approved continuing mediation education for every four 4 hours of preparation time for a contributing author who does not make a presentation relating to the materials prepared.

c One 1 hour of approved continuing mediation education for every hour the mediator spends in attendance at sessions of a course other than those in which the mediator participates as a teacher, lecturer or panel member.

d Mediators will not receive credit for acting as a speaker, lecturer or panelist on a program directed to elementary, high school or college student level neutrals, or for a program that is not approved under Alternative Dispute Resolution Rule 2.

Absent an agreement by the parties, including any guardian ad litem, court appointed special advocate, or other person properly appointed by the court to represent the interests of any child involved in a domestic relations case, the court may set an hourly rate for mediation and determine the division of such costs by the parties.

The costs should be predicated on the complexity of the litigation, the skill levels needed to mediate the litigation, and the litigants' ability to pay.

Unless otherwise agreed, the parties shall pay their mediation costs within thirty 30 days after the close of each mediation session. A Advisement of Participants. The mediator shall:. B Mediation Conferences. At the discretion of the mediator, non-parties to the dispute may also be present. A party who self-identifies or who the mediator identifies as a victim after screening for domestic violence shall be permitted to have a support person present at all mediation sessions.

The mediator may terminate the mediation at any time when a participant becomes disruptive to the mediation process. C Confidential Statement of Case. Each side may submit to the mediator a confidential statement of the case, not to exceed ten 10 pages, prior to a mediation conference, which shall include:.

A confidential statement of the case may be supplemented by damage brochures, videos, and other exhibits or evidence. The confidential statement of the case shall at all times be held privileged and confidential from other parties unless agreement to the contrary is provided to the mediator.

D Termination of Mediation. a that of the meditation process would harm or prejudice one or more of the parties or the children;. b the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely;.

c due to conflict of interest or bias on the part of the mediator;. E Report of Mediation: Status. The report shall indicate that an agreement was or was not reached in whole or in part or that the mediation was extended by the parties. If the parties do not reach any agreement as to any matter as a result of the mediation, the mediator shall report the lack of any agreement to the court without comment or recommendation.

With the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.

In domestic relations matters, the agreement shall then be filed with the court. If the agreement is complete on all issues, a joint stipulation of disposition shall be filed with the court.

In all other matters, the agreement shall be filed with the court only by agreement of the parties. At the request and with the permission of all parties in a domestic relations case, a Mediator may prepare or assist in the preparation of documents as set forth in this paragraph F.

The Mediator shall also review each document drafted during mediation with any unrepresented parties. During the review the Mediator shall explain to unrepresented parties that they should not view or rely on language in documents prepared by the Mediator as legal advice.

The Mediator may prepare or assist in the preparation of only the following documents:. With the exception of privileged communications, the rules of evidence do not apply in mediation, but factual information having a bearing on the question of damages should be supported by documentary evidence whenever possible.

Whenever possible, parties are encouraged to limit discovery to the development of information necessary to facilitate the mediation process. Upon stipulation by the parties or as ordered by the court, discovery may be deferred during mediation pursuant to Indiana Rules of Procedure, Trial Rule 26 C.

A Confidentiality. B Admissibility. At any time fifteen 15 days or more after the period allowed for a peremptory change of venue under Trial Rule 76 B has expired, the parties may file with the court an agreement to arbitrate wherein they stipulate whether arbitration is to be binding or nonbinding, whether the agreement extends to all of the case or is limited as to the issues subject to arbitration, and the procedural rules to be followed during the arbitration process.

Upon approval, the agreement to arbitrate shall be noted on the Chronological Case Summary of the Case and placed in the Record of Judgments and Orders for the court.

During arbitration, the case shall remain on the regular docket and trial calendar of the court. In the event the parties agree to be bound by the arbitration decision on all issues, the case shall be removed from the trial calendar. During arbitration the court shall remain available to rule and assist in any discovery or pre-arbitration matters or motions.

Each court shall maintain a listing of lawyers engaged in the practice of law in the State of Indiana who are willing to serve as arbitrators. Upon assignment of a case to arbitration, the plaintiff and the defendant shall, pursuant to their stipulation, select one or more arbitrators from the court listing or the listing of another court in the state.

If the parties agree that the case should be presented to one arbitrator and the parties do not agree on the arbitrator, then the court shall designate three 3 arbitrators for alternate striking by each side. The party initiating the lawsuit shall strike first. If the parties agree to an arbitration panel, it shall be limited to three 3 persons.

If the parties fail to agree on who should serve as members of the panel, then each side shall select one arbitrator and the court shall select a third. When there is more than one arbitrator, the arbitrators shall select among themselves a Chair of the arbitration panel.

Unless otherwise agreed between the parties, and the arbitrators selected under this provision, the Court shall set the rate of compensation for the arbitrator. Costs of arbitration are to be divided equally between the parties and paid within thirty 30 days after the arbitration evaluation, regardless of the outcome.

Any arbitrator selected may refuse to serve without showing cause for such refusal. A Notice of Hearing. Upon accepting the appointment to serve, the arbitrator or the Chair of an arbitration panel shall meet with all attorneys of record to set a time and place for an arbitration hearing.

Courts are encouraged to provide the use of facilities on a regular basis during times when use is not anticipated, i.

jury deliberation room every Friday morning. B Submission of Materials. Unless otherwise agreed, all documents the parties desire to be considered in the arbitration process shall be filed with the arbitrator or Chair and exchanged among all attorneys of record no later than fifteen 15 days prior to any hearing relating to the matters set forth in the submission.

Documents may include medical records, bills, records, photographs, and other material supporting the claim of a party. In the event of binding arbitration, any party may object to the admissibility of these documentary matters under traditional rules of evidence; however, the parties are encouraged to waive such objections and, unless objection is filed at least five 5 days prior to hearing, objections shall be deemed waived.

In addition, no later than five 5 days prior to hearing, each party may file with the arbitrator or Chair a pre-arbitration brief setting forth factual and legal positions as to the issues being arbitrated; if filed, pre-arbitration briefs shall be served upon the opposing party or parties.

The parties may in their Arbitration Agreement alter the filing deadlines. They are encouraged to use the provisions of Indiana's Arbitration Act IC et seq. and the Uniform Arbitration Act IC et seq. to the extent possible and appropriate under the circumstances. C Discovery. Rules of discovery shall apply.

Thirty 30 days before an arbitration hearing, each party shall file a listing of witnesses and documentary evidence to be considered. The listing of witnesses and documentary evidence shall be binding upon the parties for purposes of the arbitration hearing only.

D Hearing. Traditional rules of evidence need not apply with regard to the presentation of testimony. As permitted by the arbitrator or arbitrators, witnesses may be called.

Attorneys may make oral presentation of the facts supporting a party's position and arbitrators are permitted to engage in critical questioning or dialogue with representatives of the parties.

In this presentation, the representatives of the respective parties must be able to substantiate their statements or representations to the arbitrator or arbitrators as required by the Rules of Professional Conduct. The parties may be permitted to demonstrate scars, disfigurement, or other evidence of physical disability.

Arbitration proceedings shall not be open to the public. E Confidentiality. Arbitration proceedings shall be considered as settlement negotiations as governed by Ind. Evidence Rule For purposes of reference, Evid.

Rule Compromise and Offers to Compromise. Evidence of 1 furnishing or offering or promising to furnish, or 2 accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim, which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

If any such circumstances have been disclosed, the individual shall not serve as Neutral Adviser unless all parties agree. No party, nor anyone acting on its behalf, shall unilaterally communicate with the Neutral Adviser on any matter of substance, except as specifically provided for herein or agreed between the parties.

The parties will promptly send to the Neutral Adviser such materials as they may agree upon for the purpose of familiarizing the Neutral Adviser with the facts and issues in the dispute.

The parties shall comply promptly with any requests by the Neutral Adviser for additional documents or information relevant to the dispute. The parties may jointly seek the advice and assistance of the Neutral Adviser or CPR in interpreting this procedure and on procedural matters.

The Neutral Adviser's per diem or hourly charge will be established at the time of appointment. Unless the parties otherwise agree, a the fees and expenses of the Neutral Adviser, CPR's time charges, and any other expenses of the proceeding will be borne equally by the parties; and b each party shall bear its own costs of the proceeding.

Discovery 4. If either or both parties have a substantial need for discovery to prepare for the information exchange, the parties shall attempt in good faith to agree on a plan for strictly necessary, expeditious discovery.

Should they fail to agree, either party may request a joint meeting with the Neutral Adviser, who shall assist the parties in formulating a discovery plan.

Should the minitrial not result in a settlement of the dispute, discovery taken in the proceeding may be used in any pending or future proceeding between the parties relating to the dispute unless the parties otherwise agree. Such discovery shall not restrict a party's ability to take additional discovery in any such proceeding.

Briefs and Exhibits Before the information exchange, the parties shall exchange, and submit to the Neutral Adviser, briefs, as well as all documents or other exhibits on which the parties intend to rely during the information exchange.

The parties shall agree upon the length of such briefs, and on the date on which such briefs, documents and other exhibits are to be exchanged. The Minitrial Information Exchange 6. The minitrial information exchange shall be held before the minitrial panel at a place and time stated in the initiating agreement or thereafter agreed to by the parties and the Neutral Adviser.

During the information exchange each party shall make a presentation of its best case, and each party shall be entitled to a rebuttal.

The order and permissible length of presentations and rebuttals shall be determined by agreement between the parties, or failing such agreement, by the Neutral Adviser.

The Neutral Adviser will moderate the information exchange. The presentations and rebuttals of each party may be made in any form, and by any individuals, as desired by such party.

Presentations by fact witnesses and expert witnesses shall be permitted. Presentations may not be interrupted, except that during each party's presentation, and following such presentation, any member of the panel may ask clarifying questions of counsel or other persons appearing on that party's behalf.

No member of the panel may limit the scope or substance of a party's presentation. No rules of evidence, including rules of relevance, will apply at the information exchange, except that the rules pertaining to privileged communications and attorney work product will apply.

Members of the panel, and if the parties so agree, each party and counsel, may ask questions of opposing counsel and witnesses during scheduled, open question and answer exchanges and during that party's rebuttal time. The information exchange shall not be recorded by any means.

However, subject to Section 8, persons attending the information exchange may take notes of the proceedings. In addition to counsel, each management representative may have advisers in attendance at the information exchange, provided that the other party and the Neutral Adviser shall have been notified of the identity of such advisers at least five days before commencement of the information exchange.

Negotiations Between Management Representatives 7. At the conclusion of the information exchange, the management representatives shall meet one or more times, as necessary, by themselves, and shall make all reasonable efforts to agree on a resolution of the dispute.

By agreement, other members of their teams may be invited to participate in the meetings. At the request of either management representative, the Neutral Adviser will meet with the management representatives jointly or separately at his or her discretion, and will give an oral opinion as to the issues raised during the information exchange and as to the likely outcome at trial of each issue.

Thereupon, the management representatives will again attempt to resolve the dispute. If either management representative requests a written opinion on such matters, the Neutral Adviser shall promptly render such an opinion.

At the request of the management representatives, the Neutral Adviser may at any time mediate the negotiations and may propose settlement terms. The terms of any settlement are to be set out in a written agreement which is to be signed by the management representatives as soon as possible after conclusion of the negotiations and will, once signed, be legally binding on the parties.

Confidentiality 8. The entire process is a compromise negotiation. All offers, promises, conduct and statements, whether oral or written, made in the course of the proceeding by any of the parties, their agents, employees, experts and attorneys, and by the Neutral Adviser are confidential.

Such offers, promises, conduct and statements are privileged under any applicable mediation privilege, and are subject to FRE and any state counterpart rules or doctrine and are inadmissible and not discoverable for any purpose, including impeachment, in litigation between the parties to the minitrial or other litigation.

However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its presentation or use at the minitrial.

The Neutral Adviser is the parties' joint counsel, or agent if not an attorney. The Neutral Adviser will be disqualified as a witness, consultant, or expert for any party, and as an arbitrator between the parties, and his or her oral and written opinions will be inadmissible for all purposes in this or any other dispute involving the parties hereto.

Court Proceedings 9. If on the commencement date no litigation is pending between the parties with respect to the subject matter of the minitrial, no party shall commence such litigation until the minitrial proceedings have terminated in accordance with Section 10 hereof.

Execution of the initiating agreement shall toll all applicable statutes of limitation until the minitrial proceedings have terminated. The parties will take such other action, if any, required to effectuate such tolling.

If on the commencement date litigation is pending between the parties with respect to the subject matter of the minitrial, the parties may promptly a present a joint motion to the court to request a stay of all proceedings pending conclusion of the minitrial proceedings; and b request the court to enter an order protecting the confidentiality of the minitrial and barring any collateral use by the parties of any aspect of the minitrial in any pending or future litigation.

The grant of such stay and protective order shall not be a condition to the continuation of the minitrial proceeding. Termination of Proceeding The proceeding shall be deemed terminated if and when a the parties have not executed a written settlement of their dispute on or before the thirtieth day following conclusion of the information exchange which deadline may be extended by mutual agreement , or b either party serves on the other party and on the Neutral Adviser a written notice of withdrawal from the proceeding.

Actions Against the Neutral Adviser or CPR Neither the Neutral Adviser nor CPR shall be liable to any party for any act or omission in connection with the minitrial proceeding. The simplicity of the procedure permits rapid completion.

The period from signing the initiating agreement to settlement might be about 90 days. Of course, the length of the process will vary from case to case. The information exchange frequently can be completed in one day. A sample time schedule is attached.

Discovery, if any, should be limited to that for which each party has a substantial need for purposes of the minitrial information exchange.

As a rule, such discovery would be far less extensive and less formal than discovery conducted in preparation for a trial. If negotiations fail to result in a resolution, then parties are free to proceed to another method of settlement. A hybrid process, the judicial mini-trial, is also used at the provincial level.

A judicial mini-trial shares most of the characteristics of the private mini-trial with a few obvious modifications. First, it is suggested to the parties by a judge during the litigation process.

If parties and their counsel consent, counsel will present each side's case in an expedited hearing to the judge who renders a non-binding opinion regarding how the dispute should be resolved. Parties then attempt to negotiate a settlement based upon that opinion.

If settlement is not possible, the parties may continue with their court action. The judge who conducts the mini-trial will not sit as the trial judge and will keep his or her opinion of the case confidential. Judicial mini-trials are currently used in Alberta [1] and in British Columbia [2]. Before discussing the possibility of mini-trial with other parties, one must first ensure that one's own internal management and key personnel are amenable to the process.

This begs the question, when is a mini-trial appropriate for the federal government? First, as one must ask with all ADR procedures, does the dispute involve matters of public law, policy or legal precedent for which a final disposition from the court is required?

If so, then a mini-trial is inappropriate. Second, do the parties wish to retain control over the dispute resolution process? If the parties want a greater degree of involvement and control over the outcome than is typically allowed in an adjudicative process, such as arbitration, then a mini-trial is an option.

Third, is the dispute substantial enough to justify the effort and expense required for a mini-trial? Although the mini-trial is indeed faster and less expensive than litigation, it nevertheless entails a significant amount of preparation and cost.

Have the parties first attempted to settle the dispute through face-to-face negotiations? Could this case be settled though negotiations at the senior management level? If so, then the cost of a mini-trial can be avoided.

Fourth, is the case comprised predominantly of disputed questions of fact? Questions of fact are always more amenable to consensual resolution processes than questions of law. Mixed questions of fact and law may also be appropriate for mini-trial if there is no need for a definitive judgment on the law.

It is better if the legal rules concerned are relatively clear so that a resolution of the disputed facts may clarify the legal outcome.

Fifth, do the parties have a business relationship that they wish to maintain? The relative speed of this process and the cooperation required of the parties make it a useful tool in preserving a working relationship. Sixth, are there numerous parties to the dispute?

The formal structure of the mini-trial is a positive influence in multi-party conflicts. Once it has been determined that a mini-trial is appropriate, one must obtain the concurrence of the other party ies. In general, a mini-trial is introduced later in the life of a dispute than other ADR processes, even after the commencement of legal proceedings.

Nevertheless, since one of the primary benefits of the mini-trial is to save time and expense, it is best to initiate the process before a significant amount of the legal costs have been incurred.

Generally, it is legal counsel who suggests the use of the mini-trial. One obstacle to initiating the process is the familiarity of the parties and counsel with the mini-trial. Obviously, parties will only agree to the process if they are satisfied that it is a fair and workable procedure. If the client or opposing party ies are uncertain, one could provide them with advice or literature on the benefits of the mini-trial.

The process is far more likely to be successful if the parties are comfortable with it and knowledgeable of its advantages and disadvantages.

In addition to client personnel who have been involved in the dispute and will assist counsel in preparing for the mini-trial, a representative of senior management must be selected who will sit on the panel with the neutral to hear each party's submission.

This representative will also be responsible for negotiating a resolution with the other party representatives following the hearing. Although one can conduct a mini-trial without the assistance of a neutral, the process is greatly enhanced by having the neutral present. The neutral may:.

The powers that the neutral exercises in any given mini-trial are determined by the parties and expressly laid out in the Mini-Trial Agreement. The nature of the role that the parties wish the neutral to play eg.

non-binding arbiter, mediator, technical expert? will help determine where the parties want to look to select this key participant. The parties should clarify between themselves what this role will be before commencing the selection process.

The Agreement specifies the rules and procedure which will govern the mini-trial. Drafting the Agreement is obviously a critical step in the process, one which should be attended to carefully as it will influence the success of the process.

One of the primary advantages of counsel and clients' role in crafting the Agreement is its resulting flexibility.

Each element of the procedure may be structured by the parties to best fit the dispute at hand. Counsel and party representatives should all participate in drafting the mini-trial agreement.

The neutral may also lend important process assistance and may be given the authority by the parties to make a decision on any disputed procedural step.

An experienced neutral may also be able to advise parties and counsel on what types of procedural choices work best. A sample mini-trial agreement is found in this Module as Annex B. It includes some of the procedural details that will have to be addressed when drafting your own mini-trial agreement.

The role of counsel in a mini-trial is not unlike that during litigation. In general, counsel will prepare their client's case, handle discovery and the development of witness statements and position papers to be exchanged, and make an abbreviated presentation of the case before the panel.

Unlike litigation, counsel also plays a fundamental role in drafting the Mini-Trial Agreement. Counsel generally plays the role of advocate during the mini-trial. This differs from the more conciliatory or settlement-oriented role that counsel may play in other ADR procedures such as mediation or negotiation.

In the mini-trial, it is the client representative who will be responsible for negotiating a settlement. As mentioned, the mini-trial is a settlement technique that aims to facilitate efficient and effective resolution of civil disputes. A few of the advantages to be gained through the mini-trial process are as follows:.

While arbitration clauses are now generally enforceable under provincial and federal arbitration acts eg. Commercial Arbitration Act as well as under case law, other methods are not governed by legislation.

The courts, however, may be willing to uphold ADR agreements, first as a contractual obligation; second by likening the ADR agreement to an agreement to arbitrate, the latter being specifically enforceable; and third in recognition of the fact that public policy favours alternatives to litigation where these alternatives serve the interest of the parties and of judicial administration.

Under the doctrine established in Scott vs. Avery 10 All E. A party's success in enforcing the use of the mini-trial clause may well be improved by the addition of an express provision that no legal action may be brought until the mini-trial has been attempted in good faith.

Note that one cannot compel a party to actually resolve a dispute through the mini-trial process.

This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR) A mini-trial is conducted under an agreement of the parties. Each party and counsel for the party present the position A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a

Mini Trial Selection - The panel is chaired by a neutral, selected jointly by the parties. At the close of the hearing, the neutral recommends This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR) A mini-trial is conducted under an agreement of the parties. Each party and counsel for the party present the position A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a

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.

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.

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Among other things, the neutral may be empowered to:. The mini-trial is an entirely voluntary process. As such, one will enter into a mini-trial only upon consent of all of the parties.

If negotiations fail to result in a resolution, then parties are free to proceed to another method of settlement. A hybrid process, the judicial mini-trial, is also used at the provincial level. A judicial mini-trial shares most of the characteristics of the private mini-trial with a few obvious modifications.

First, it is suggested to the parties by a judge during the litigation process. If parties and their counsel consent, counsel will present each side's case in an expedited hearing to the judge who renders a non-binding opinion regarding how the dispute should be resolved.

Parties then attempt to negotiate a settlement based upon that opinion. If settlement is not possible, the parties may continue with their court action. The judge who conducts the mini-trial will not sit as the trial judge and will keep his or her opinion of the case confidential.

Judicial mini-trials are currently used in Alberta [1] and in British Columbia [2]. Before discussing the possibility of mini-trial with other parties, one must first ensure that one's own internal management and key personnel are amenable to the process.

This begs the question, when is a mini-trial appropriate for the federal government? First, as one must ask with all ADR procedures, does the dispute involve matters of public law, policy or legal precedent for which a final disposition from the court is required?

If so, then a mini-trial is inappropriate. Second, do the parties wish to retain control over the dispute resolution process? If the parties want a greater degree of involvement and control over the outcome than is typically allowed in an adjudicative process, such as arbitration, then a mini-trial is an option.

Third, is the dispute substantial enough to justify the effort and expense required for a mini-trial? Although the mini-trial is indeed faster and less expensive than litigation, it nevertheless entails a significant amount of preparation and cost.

Have the parties first attempted to settle the dispute through face-to-face negotiations? Could this case be settled though negotiations at the senior management level?

If so, then the cost of a mini-trial can be avoided. Fourth, is the case comprised predominantly of disputed questions of fact? Questions of fact are always more amenable to consensual resolution processes than questions of law. Mixed questions of fact and law may also be appropriate for mini-trial if there is no need for a definitive judgment on the law.

It is better if the legal rules concerned are relatively clear so that a resolution of the disputed facts may clarify the legal outcome. Fifth, do the parties have a business relationship that they wish to maintain? The relative speed of this process and the cooperation required of the parties make it a useful tool in preserving a working relationship.

Sixth, are there numerous parties to the dispute? The formal structure of the mini-trial is a positive influence in multi-party conflicts. Once it has been determined that a mini-trial is appropriate, one must obtain the concurrence of the other party ies. In general, a mini-trial is introduced later in the life of a dispute than other ADR processes, even after the commencement of legal proceedings.

Nevertheless, since one of the primary benefits of the mini-trial is to save time and expense, it is best to initiate the process before a significant amount of the legal costs have been incurred. Generally, it is legal counsel who suggests the use of the mini-trial. One obstacle to initiating the process is the familiarity of the parties and counsel with the mini-trial.

Obviously, parties will only agree to the process if they are satisfied that it is a fair and workable procedure. If the client or opposing party ies are uncertain, one could provide them with advice or literature on the benefits of the mini-trial.

The process is far more likely to be successful if the parties are comfortable with it and knowledgeable of its advantages and disadvantages. In addition to client personnel who have been involved in the dispute and will assist counsel in preparing for the mini-trial, a representative of senior management must be selected who will sit on the panel with the neutral to hear each party's submission.

This representative will also be responsible for negotiating a resolution with the other party representatives following the hearing. Although one can conduct a mini-trial without the assistance of a neutral, the process is greatly enhanced by having the neutral present.

The neutral may:. The powers that the neutral exercises in any given mini-trial are determined by the parties and expressly laid out in the Mini-Trial Agreement.

The nature of the role that the parties wish the neutral to play eg. non-binding arbiter, mediator, technical expert? will help determine where the parties want to look to select this key participant. The parties should clarify between themselves what this role will be before commencing the selection process.

The Agreement specifies the rules and procedure which will govern the mini-trial. Drafting the Agreement is obviously a critical step in the process, one which should be attended to carefully as it will influence the success of the process.

One of the primary advantages of counsel and clients' role in crafting the Agreement is its resulting flexibility. Each element of the procedure may be structured by the parties to best fit the dispute at hand.

Counsel and party representatives should all participate in drafting the mini-trial agreement. The neutral may also lend important process assistance and may be given the authority by the parties to make a decision on any disputed procedural step.

An experienced neutral may also be able to advise parties and counsel on what types of procedural choices work best. A sample mini-trial agreement is found in this Module as Annex B. It includes some of the procedural details that will have to be addressed when drafting your own mini-trial agreement.

The role of counsel in a mini-trial is not unlike that during litigation. In general, counsel will prepare their client's case, handle discovery and the development of witness statements and position papers to be exchanged, and make an abbreviated presentation of the case before the panel.

Unlike litigation, counsel also plays a fundamental role in drafting the Mini-Trial Agreement. Counsel generally plays the role of advocate during the mini-trial. This differs from the more conciliatory or settlement-oriented role that counsel may play in other ADR procedures such as mediation or negotiation.

In the mini-trial, it is the client representative who will be responsible for negotiating a settlement. As mentioned, the mini-trial is a settlement technique that aims to facilitate efficient and effective resolution of civil disputes.

A few of the advantages to be gained through the mini-trial process are as follows:. While arbitration clauses are now generally enforceable under provincial and federal arbitration acts eg. Commercial Arbitration Act as well as under case law, other methods are not governed by legislation.

The courts, however, may be willing to uphold ADR agreements, first as a contractual obligation; second by likening the ADR agreement to an agreement to arbitrate, the latter being specifically enforceable; and third in recognition of the fact that public policy favours alternatives to litigation where these alternatives serve the interest of the parties and of judicial administration.

Under the doctrine established in Scott vs. Avery 10 All E. A party's success in enforcing the use of the mini-trial clause may well be improved by the addition of an express provision that no legal action may be brought until the mini-trial has been attempted in good faith.

Note that one cannot compel a party to actually resolve a dispute through the mini-trial process. Because the mini-trial is consensual in nature, there is no right of appeal. It is obvious that a party cannot appeal from a settlement that the party itself willingly entered.

If that willingness or knowledge of a party is in question, or if a problem arises as to the implementation of the agreement, then recourse lies with the court, not as a matter of appeal but as a question of first instance under contract law. One very important element of any collaborative process is the authority of all of the parties at the table to commit to an agreement, once reached.

In the context of a mini-trial, this authority is required at the negotiating stage which follows the panel hearing. With many corporate parties, there may well be instances where an agreement reached during the creative process of negotiation is beyond the scope of the party's current mandate and the party is required to give but conditional consent pending ratification from the decision-making body of that party.

The key in such a situation is to obtain that consent as quickly as possible so that the agreement that the parties worked so hard to craft does not fail for lack of momentum or commitment from the party requiring authorization.

With the government as a party, however, agreement is often conditional. The government has a responsibility to represent a broader public interest and to ensure that statutory and policy requirements are met.

For this reason, the government representative at the mini-trial may not be the ultimate decision-maker, depending on the circumstances of the case. This should not be taken as evidence of any lack of commitment to the process on the government's behalf, but rather an inevitable result of accountability obligations of a public entity.

What one is left with then is the need for a rapid and definite procedure by which the government representative and any other representative needing formal party approval will seek ratification of the negotiated agreement from the appropriate decision-maker. This procedure can be set forth in the Mini-Trial Agreement.

The parties shall equally bear the costs of the neutral advisor and any common administrative expenses. The parties are solely responsible for the costs of their own counsel and case preparation. Mini-Trials may take from a few hours up to a number of days.

You will not receive a reply. For enquiries, please contact us. Dispute Resolution Reference Guide Previous Page Table of Contents Next Page The Mini-trial Dispute Resolution Series Practice Module 3 Produced by Dispute Prevention and Resolution Services Department of Justice, Canada I.

What is a mini-trial The mini-trial is in essence a structured negotiated settlement technique. Among other things, the neutral may be empowered to: set the timetable for the hearing if the parties are unable to agree; act as chairperson to ensure that the parties adhere to the schedule; rule on disputed discovery or evidentiary matters; question witnesses or party representatives; caucus with parties individually where necessary; issue a non-binding, written opinion.

Characteristics of a mini-trial A Mini-Trial is: Voluntary: Parties must expressly agree to attempt settlement through the mini-trial process. The agreement to undergo a mini-trial is generally set out in writing.

Private: Despite its name, the mini-trial is a non-judicial, expedited procedure generally used in the commercial context. A panel, comprised of a senior executive from each party and one neutral, selected jointly by the parties, hears submissions from each side.

Informal: There are no fixed procedural or evidentiary rules governing the process. Rather, the parties agree to a hearing schedule and decide upon a set of governing rules concerning discovery, evidence and witnesses.

These rules are set out in the mini-trial agreement. Assisted: Following each party's presentation, the neutral panel chair issues a recommended, non-binding solution. The party representatives from the panel and their chosen advisors then attempt to negotiate a settlement based upon that recommendation.

The neutral may be invited to serve as mediator or facilitator during those negotiations.

Mini-Trial. In a mini-trial, each attorney presents a short Parties typically select this form of ADR when there are complicated select a civil case for a mini-trial. Within fifteen (15) days after notice of selection for a mini-trial, a party may object by This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR): Mini Trial Selection

The minitrial panel shall consist Mini Trial Selection Affordable Retirement Party Catering member of management from Sellection party Triao "management representative"Trisl shall have authority to negotiate a settlement on behalf of the party represented, and a neutral adviser the "Neutral Adviser". Alternative Dispute Resolution ADR is an alternative way to resolve disputes. Do the representatives have the authority to settle? Settlement Agreement. The Mediator shall also review each document drafted during mediation with any unrepresented parties.	In general, a mini-trial is introduced later in the life of a dispute than other ADR processes, even after the commencement of legal proceedings. A registered mediator must complete a minimum of six hours of Commission approved continuing mediation education anytime during a three-year educational period. g in the case of law school classes, in addition to the standard set forth above the class must be a regularly conducted class at a law school accredited by the American Bar Association. if communication breaks down, parties may realize that they want the neutral to act as mediator during the subsequent negotiations — the parties may also grant the neutral the authority to act as arbitrator once he has established that attempts at reaching a settlement have failed. Mediation Costs.	This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR) A mini-trial is conducted under an agreement of the parties. Each party and counsel for the party present the position A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a	Selection of the advisor shall be based upon the education, training and experience necessary to assist the parties in resolving The panel is chaired by a neutral, selected jointly by the parties. At the close of the hearing, the neutral recommends select a civil case for a mini-trial. Within fifteen (15) days after notice of selection for a mini-trial, a party may object by	A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case Missing The panel is chaired by a neutral, selected jointly by the parties. At the close of the hearing, the neutral recommends
USLegal Home Arbitration Mini Trials. Mini Trial Selection Programs directed to elementary, Trisl school or college student Cheap grocery savings neutrals. Each party Mini Trial Selection Seledtion from Selwction list any candidate it finds unacceptable, shall number the remaining candidates in order of preference, and shall deliver the list so marked to CPR. The party representatives from the panel and their chosen advisors then attempt to negotiate a settlement based upon that recommendation. Call or click now!	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. By far, mediation is the most popular form of Alternative Dispute Resolution. Drafting the Agreement is obviously a critical step in the process, one which should be attended to carefully as it will influence the success of the process. The mediator may terminate the mediation at any time when a participant becomes disruptive to the mediation process. A few of the advantages to be gained through the mini-trial process are as follows:. All states Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Select your State. How does mini-trial work?	This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR) A mini-trial is conducted under an agreement of the parties. Each party and counsel for the party present the position A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a	20 In fact, he argues that cost is not the main motivating factor in the choice to arbitrate.2 1 He states that a main motivation selected before the mini-trial agreement is developed. This is influence your selection of a mini-advisor. es. To date, most Selection of the advisor shall be based upon the education, training and experience necessary to assist the parties in resolving	This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR) A mini-trial is conducted under an agreement of the parties. Each party and counsel for the party present the position A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a
Selectipn the parties Frozen foods for less agree, a the fees and expenses of the Trual Adviser, CPR's time charges, Mini Trial Selection any Triak expenses of the Mini Trial Selection Selecgion Mini Trial Selection Seelection equally by the parties; and b each party shall bear its own costs of the proceeding. Administrative Rule 3 A in which they desire to mediate and identify the types of litigation which they desire to mediate. Contact Us Hello. The case file maintained under the case number initially assigned shall serve as the repository for papers and other materials submitted for consideration during the alternative dispute resolution process. A representative will be in touch with you shortly. At the end of the presentations, the representatives attempt to settle the dispute.	Costs: How will costs be allocated. The Doctrine of Constructive Dismissal The Doctrine of Constructive Dismissal. Any such individual shall promptly disclose any such circumstances to the parties. The neutral may also lend important process assistance and may be given the authority by the parties to make a decision on any disputed procedural step. Costs of the summary jury trial are to be divided equally between the parties and are to be paid within thirty 30 days after the conclusion of the summary jury trial. Generally, there is no obligation to settle during the mini-trial, nor is the opinion of the neutral binding. arrow left Back to Alternative Dispute Resolution.	This pamphlet is one in a series of pamphlets describing techniques for Alternative. Dispute Resolution (ADR) A mini-trial is conducted under an agreement of the parties. Each party and counsel for the party present the position A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a	Missing Mini-Trial. In a mini-trial, each attorney presents a short Parties typically select this form of ADR when there are complicated If the Neutral Adviser is not named in the initiating agreement, the parties will attempt to select a Neutral Adviser by mutual	Selection of the advisor shall be based upon the education, training and experience necessary to assist the parties in resolving Another reason for not selecting the Mini-Trial is that both parties may want to pursue a binding resolution which the Mini-Trial does A mini-trial is an alternative method for resolving a legal dispute from a formal court trial. Mini-trials, like mediations and

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