It is not uncommon for a construction contract to contain a dispute resolution section that typically requires the parties to mediate a dispute and, if mediation fails, they either arbitrate or litigate the dispute.
Chapter 154 of the Texas Civil Practice and Remedies Code outlines various alternative dispute resolution procedures available to parties. Of the dispute resolution methods in Chapter 154, mediation and arbitration are the most prevalent.
Usually overlooked and seldom used are the following three dispute resolution options:
- Moderated Settlement Conference
- Summary Jury Trial
Mini-trial and Moderated Settlement Conference
A mini-trial and moderated settlement conference are similar to mediation in that they involve the use of neutral parties, but the role of the neutral parties is different than mediation.
- Conducted under an agreement of the parties.
- Each party and their counsel present the party’s position before selected representatives for the parties or before an impartial third party. This allows the parties to define the issues and develop a realistic basis for settlement negotiations.
- The impartial third party may issue an advisory opinion regarding the merits of the case. The advisory opinion is not binding unless the parties enter into a written settlement agreement.
The Moderated Settlement Conference
- Is a forum for case evaluation and realistic settlement negotiations.
- Each party and their counsel present the party’s position before a panel of impartial third parties.
- The panel may issue an advisory opinion regarding the liability and/or damages of the parties, but the advisory opinion is not binding on the parties.
Summary Jury Trial
- Intended to provide a forum for early case evaluation and development of realistic settlement negotiations.
- Each party and their counsel present the position of the party before a panel of six jurors unless the parties agree to a different number of jurors.
- At the conclusion, the jury panel may issue an advisory opinion regarding the liability and/or damages of the parties.
The summary jury trial is different than a mini-trial or moderated settlement conference because it is conducted in a courtroom using jurors from the jury pool. Summary jury trials typically last one day, and each party has a predetermined amount of time to submit their arguments and evidence. The rules of evidence are generally loosely enforced so as not to bog down the proceeding.
After the parties present their arguments, the jury is given a predetermined amount of time to deliberate, and then the jury provides its “verdict,” which is just an advisory opinion. This allows the parties to have some idea of how a group of jurors will perceive their case.
There are many benefits to getting the perspective of a neutral third party through a mini-trial, moderated settlement conference, or summary jury trial. It allows you to see what arguments or facts were well-received or were confusing to the neutral. And it also allows you to see how a neutral will react to your opponent’s arguments and facts. But most of all, it will hopefully give the parties a framework for settlement negotiations so that the case can be resolved.
Almost any type of case can be appropriate for a mini-trial, moderated settlement conference, or summary jury trial so keep them in mind for helping you get a case resolved.