Construction projects often involve complex contracts, multiple parties, and unforeseen issues that can lead to disputes. Resolving these disputes can be costly, time-consuming, and damaging to the relationships among the stakeholders. One alternative dispute resolution (ADR) method that can help avoid litigation and preserve cooperation is the construction mini-trial.
A mini-trial is a voluntary and confidential process where the disputing parties present their arguments and evidence to a neutral advisor and senior representatives of each side. The neutral advisor, who can be an expert, a lawyer, or a retired judge, acts as a facilitator and provides a non-binding opinion on the merits of the case. The senior representatives, who have the authority to settle the dispute, then engage in negotiations based on the advisor's feedback and their own assessment of the situation.
Also they are used in corporate or government litigation to provide decision makers with the opportunity to solve legal issues while guarding future business or relationship interests.
mini - trial is simply a traditional version of the official mediation Arbitration. but in a mini - trial case result can be faster and have more flexibility, consequently, that will help to resolve disputes in shorter time and less efforts and limited consequences o both parties. I highly recommend for this mothod Arbitration to be more involved in future contracts.
Según mi experiencia la resolución de controversias va de la mano con el tipo de contratación. Actualmente, estamos avanzando a contratos colaborativos donde se abordan sistemas de arbitraje temprano. Los contratos NEC en Perú son un gran ejemplo a seguir.
Mini-trials can offer several advantages compared to litigation or arbitration, such as saving time and money. These trials can be conducted in a matter of days or weeks, with fewer formal procedures, fewer discovery requirements, and lower legal fees. They also allow the parties to communicate directly and understand each other's perspectives, preserving relationships while avoiding the adversarial and public nature of litigation. Furthermore, mini-trials give the parties more freedom to choose the neutral advisor, the rules of evidence, and the format of the presentations. They empower the parties to decide the outcome of the dispute, rather than relying on a third-party decision-maker.
Los mini juicios, en Espa?a no son habituales, se da más la medicación y sobretodo el arbitraje. En el sector de la Construcción, siendo más habitual el arbitraje, la mejor solución siempre suele ser el acuerdo entre las partes, ya que los plazos de ejecución siempre son un problema y estos mini juicios o arbitrajes, aunque sean rápidos siempre suponen retrasos. Los casos más habituales que requieren estas medidas son por discrepancias en el pago, en aumentos de presupuesto y en los casos de mala ejecución de los trabajos. Para evitar estos problemas es fundamental contar con un buen contrato con todo bien aclarado, una buena documentación de obra y una dirección facultativa competente y que indique las desviaciones desde el 1 momento.
To ensure a successful mini-trial, the parties should take certain steps. Firstly, they should agree on the scope and terms of the mini-trial by signing a written agreement that outlines the issues to be resolved, the role of the neutral advisor, the authority and participation of senior representatives, the rules of evidence and procedure, and confidentiality and enforceability. Secondly, they should jointly select a neutral advisor who has relevant expertise, experience, and credibility. Thirdly, they should prepare and exchange concise summaries of their positions, arguments, and evidence. Lastly, during the mini-trial, each side should present their summaries to the neutral advisor and senior representatives in a structured manner. The neutral advisor will ask questions and offer guidance while the senior representatives will evaluate each side's strengths and weaknesses before initiating settlement discussions.
A mini-trial may not be the best solution for every dispute, and it could face some challenges. For instance, lawyers may be resistant to participating in a mini-trial, as it could reduce their fees or expose their weaknesses. To counter this, the parties should communicate the benefits and expectations of the mini-trial to their lawyers. Additionally, senior representatives may not have the interest, authority, or willingness to settle the dispute. To ensure they are involved and empowered to make decisions, the parties should make sure they are fully informed. Lastly, some disputes may be too complex to be resolved by a mini-trial. The parties should be realistic and creative in finding a mutually acceptable solution.
I found it helpful that all lawyers carefully look at a situation before charging their client excessive money in a civil lawsuite. In some cases the customer maybe just at fault as the contractor being that there isn't always a written contract and in some cases and states that verbal communication can be binded as a contractor as well and leave fault on customer rather than contractor. Not every contractor can meet every customer's needs and sometimes when a customer feels they are too far into something they will try to find a way to get out of pain. A contractor where there was clearly written or verbal communication
A mini-trial is most suitable for disputes that involve technical, factual, or legal issues that require expert input and affect ongoing or future business relationships among the parties. It is also beneficial when there is a clear and limited scope and objectives, and the parties are willing to cooperate and compromise. However, a mini-trial is not recommended for disputes that involve personal, ethical, or moral issues, have no possibility of settlement or negotiation, have hostile, distrustful, or dishonest parties, need a binding and enforceable decision, or need a precedent or public record.
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