Other Dispute Resolution Procedures for Business Cases
If you don’t think mediation is right for your case, or if your mediation doesn’t result in a settlement, you might want to consider one of these alternative procedures.
1. Mediation With Settlement Proposal
If your case does not settle during the mediation, but you believe the mediator is fair and has a good understanding of the dispute, you can ask the mediator to prepare a settlement proposal (also referred to as a “written recommendation”) for the parties to consider.
For more on this, including tips on encouraging a reluctant mediator to do it, see Chapter 8.Timing is key. You shouldn’t raise the possibility of the mediator making a settlement proposal before or during the mediation itself, because this will probably result in both parties trying to curry favor with the mediator. It’s better to wait until the mediator declares the mediation effort ended before raising the possibility of asking the mediator for a settlement proposal.
2. Mini-Trials
Despite its name, a mini-trial is not a court trial at all. It’s an innovative dispute resolution technique that allows top managers from disputing companies to quickly hear the gist of each other’s positions, then try to resolve the dispute. Mini-trials have been used successfully by major corporations and government agencies.
Mini-trials are usually arranged through a private dispute resolution company. Participants include a top official from each side who has authority to settle, each side’s lawyers, and a neutral advisor supplied by the dispute resolution company. The neutral advisor—companies often like to use retired judges—should be someone who is extremely knowledgeable in both the subject matter and legal issues in dispute. For the process to work, both sides must respect this person.
As the mini-trial opens, lawyers for each side have a chance (within strict time limits—usually half a day) to present their best arguments to executives from both companies and the neutral advisor.
This is a unique opportunity for the executives to hear—unfiltered by their own legal staffs—the other side’s best legal arguments. The advisor then tells the executives what she believes are the strengths and weaknesses of each side’s case and gives her opinion as to how a judge might decide it. The executives then meet in private, away from their lawyers, to try to negotiate a settlement.The best type of dispute for a mini-trial is one that concerns a factual, not a legal, matter. If the law is fairly clear and only the facts are in dispute, then it is easier for the neutral advisor and executives to make an educated guess as to how a real court might decide the case.
Mini-trials typically cost more than mediation or arbitration. Lawyers for both sides must prepare for and make formal presentations, and the fee for the neutral advisor is likely to be higher than you would pay for a typical mediator. Still, even if the cost for a one- or two-day minitrial is as high as $10,000 per side, that is still a bargain compared with the cost of conducting a full-blown trial in a complicated business dispute.
If you want to set up a mini-trial to resolve a dispute involving your company, ask one of the national or regional dispute resolution firms listed in Appendix C to send you information about how they would conduct this type of proceeding. ■