This option is the least formal ADR process and is nonbinding. It differs from settlement negotiations in that a mediator helps both sides reach a settlement. The mediator does not make any decision or give an opinion of the case; rather he/she carefully listens to the parties' positions and then by questioning, negotiating and generating options, helps the parties work out their own solution to their dispute. Any agreement reached can be made legally binding by putting it in writing and having the agreement signed by the parties and their attorneys. However, if a case does not settle in mediation, you are still free to proceed to trial.
Early Neutral Evaluation
An ENE evaluator is a private attorney with specialized expertise in a particular area of the law who meets with the parties early in the case process at a neutral location to hear both sides of the case. Prior to the meeting, the parties may be asked to provide the evaluator with a written evaluation statement. Counsel and parties must attend the session. After presentation by each side, the evaluator identifies the issues in dispute and assesses the strengths and weaknesses of each position. If there are settlement possibilities, the evaluator facilitates these discussions. If settlement is not possible, the evaluator may suggest additional meetings, offer to conduct further settlement negotiations, or suggest a discovery plan and stipulations.
In a mini-trial the opposing attorneys present their best arguments to the top decision makers for the companies and/or governmental agencies involved in the dispute and to an impartial third party advisor. The advisor generally possesses expertise in a specific area. The parties may agree upon a summary or an abbreviated hearing. After the presentations, the decision makers meet (either with or without the third party advisor) to try to negotiate a settlement. Mini-trials are private, confidential and nonbinding. Mini-trials appear to work best where (1) there are a small number of parties and where expertise is needed, (2) one party overestimates the strength of its position, or (3) policy issues must be presented to decision makers.
Summary Jury Trials
In a summary jury trial, the attorneys present a summary of the evidence to a jury which then renders a verdict that is advisory only. The jurors are not told that their opinion is nonbinding until after the verdict is rendered. Attorneys may then question the jurors about their response to and reasoning concerning the issues and facts. A summary jury trial is usually completed in a day or less. In many cases, the jury's reaction to the case will influence the parties to negotiate a settlement and avoid an actual trial.