Mini-trials, which aren’t actually trials at all, are often used during the mediation process. They take place before the mediation begins, with the mediator sitting as the “judge.” Both parties present their evidence, and there are few formalities, such as objections or the Q&A testimony usually seen in a traditional trial.
As with most kinds of alternative dispute resolution, the parameters of the mini-trial are determined by the litigants before they begin. The case might be presented by the attorney telling the neutral what the evidence would show or it might be presented by the attorney asking his client to explain his position. It could also be shown by pictures, videos, documents, or witnesses.
Once the mini-trial is over, the mediator “judge” gives his or her 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.
Two important things to keep in mind about a mini-trial: First, because the mini-trial is part of the mediation process, nothing is binding on either party unless both sides agree otherwise. 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 either side’s case strategy is divulged, but the mediation is not successful, the opponent will have been given valuable information to use at trial. On the other hand, if not enough information is presented, then the case could appear weak, possibly causing the other side to take a more aggressive stance, believing their chances at trial to be better. If that happens, a reasonable opportunity to mediate the dispute may be lost.
An attorney who is both a skilled litigator and negotiator will be able to advise clients on the strategy used for the case, a mini-trial, or mediation. It must all work together to be effective.