The executive tribunal or ‘mini-trial’ is usually classed as a form of alternative dispute resolution (‘ADR’) – a way to avoid bringing a commercial dispute to court. It’s a process that is currently not that common in the UK but is used regularly in other jurisdictions, notably the US.
The term executive tribunal is derived from the fact that the process involves senior executives from the companies in dispute in all stages of the decision-making process. The process normally involves a more detailed look at the strict legal position of each side than other forms of ADR.
Here we look at executive tribunals (or mini-trials) in detail and weigh up their advantages and disadvantages.
When is an executive tribunal or mini-trial used?
Executive tribunals are rarely held without a great deal of consideration. As we will see below they demand significant preparation and staff resources, including the valuable time of senior personnel. Getting ready for an executive tribunal or mini-trial will usually involve months of work, and considerable legal, expert and other fees. In fact, this form of ADR is usually seen as the most expensive – albeit not as costly as full-scale litigation.
For these reasons, executive tribunals are most suited to large-scale commercial disputes involving big companies with a lot to lose. Often the biggest incentives to embarking on a mini-trial will be the desire to safeguard a commercial reputation and a wish to preserve an ongoing business relationship.
The process and stages of executive tribunals
As with most types of ADR the process is consensual. It’s up to the parties to decide the details of how matters should proceed. Executive tribunals usually have three distinct stages as follows:
- Before the hearing – the parties choose a neutral third party to join the panel of executives that will form the tribunal and agree how the mini-trial will proceed. This involves setting out in writing timings, length of hearing, provisions for document disclosure and hearing from witnesses and other procedural matters.
- The hearing – mini-trials loosely follow the shape of formal court hearings but the panel is not constrained by the strict rules of evidence that apply in court. Panel members listen to oral arguments from both sides’ lawyers, evidence is given by witnesses, and any experts and members of the tribunal ask questions where appropriate. Lawyers finalise matters with closing arguments – much like a trial proper.
- After the hearing – The panel members retire to begin to attempt a binding resolution of the dispute. The third-party panel member will often act as a type of independent mediator to facilitate agreements.
Is the outcome of an executive tribunal legally binding?
Executive tribunals are private, consensual processes. Unless the parties agree to be bound by a decision they will not be legally required to implement it. If negotiation fails, the third-party panel member may sometimes prepare an opinion as to what the likely outcome in litigation might be. But this is not an enforceable document.
Advantages and disadvantages of executive tribunals
|Process is private and confidential. Disclosures made can’t be referred to in later court action||Lengthy preparation and cost in resources of senior employee time and energy|
|Structured to encourage flexible methods of agreement||Although designed to be informal the use of lawyers and the ‘trial-light’ aspect of the hearing might entrench parties and obstruct settlement|
|Senior executives on tribunal may not have been involved first-hand with dispute. Being one-step removed can mean a fresh outlook that can lead to agreement|
Executive tribunal vs mediation
Executive tribunals or mini-trials are likened to the mediation process more than other forms of ADR. That’s possibly because in both cases each side, usually via a lawyer, presents a case to a panel in the hope that the dispute will be settled. The process is also non-binding and the parties are free to walk away. But there’s one big difference. A mediator is neutral and seeks to encourage the parties to begin discussions toward a settlement. In the executive tribunal the mediator’s equivalent is the panel. And as we have seen, the panel is made up of personnel from the companies in dispute. So, although there is a neutral third party on the panel, that member is there chiefly to chair proceedings and on occasion offer advice on the law or provide a non-binding opinion.