The Mini-Trial: A Concept Whose Time Has Come?

If you google “mini-trial’ you will get several hundred thousand 'hits' telling you that a mini-trial is a form of alternative dispute resolution that promotes the resolution of disputes in ways that are less costly, time-consuming and acrimonious.

The British Columbia Attorney General’s office describes a mini-trial as follows:

“A mini-trial is a private meeting between you and the defendant (and your lawyers, if you have them) and a judge or master where you both will present, briefly and without witnesses, the facts of your case. Then, to help you come to the best possible decisions now, the judge or master will give you his or her opinion about what would most likely happen if your case were to go to full trial”.

In the sport context, a mini-trial would involve disputants putting their dispute (in its most general terms) before an independent decision-maker and asking the decision-maker what he or she thinks might happen if the case went to a full hearing before a formal tribunal. The decision-maker’s findings are usually given verbally and are not binding on any one: but they do help the parties (or sometimes, one of the parties) to rethink their case. The mini-trial can also help the parties to better define, and sometimes narrow their dispute.

Today, we have a growing body of sport jurisprudence in Canada, as a result of the ADR Program for Amateur Sport, which ran from 1996 to 2002, and the Sport Dispute Resolution Centre of Canada (SDRCC), which came into being to replace that program in 2002. At the time of writing the SDRCC has opened over 100 files on selection, carding and discipline disputes, and a roughly equal number in the doping portfolio. Decisions in these cases are public and we can see trends and common issues emerging. This bodes well for building a broader base of understanding of the administrative principles that apply and should be upheld in the Canadian sport system.

For this reason, we think the mini-trial concept could be useful in sport. There may be instances where a selection or carding dispute could benefit from being put before an independent arbitrator for a confidential, non-prejudicial and non-binding opinion as to how the case might unfold before an appeal panel or an arbitrator sitting as a SDRCC tribunal. Such an opinion might truly help the parties to find a common ground for settlement, or might help a sport federation rethink its decision where it becomes apparent that it has made an error. Depending on when the mini-trial is conducted, many hours and many dollars may be saved, leaving more resources for the important business of sport.

Having said that the concept holds merit, we have tried the idea twice at the Centre for Sport and Law, with limited success. In the first case, we conducted an appeal for a sport federation that resulted in a decision. Shortly after, another appeal came forward on the identical issue. We proposed a mini-trial to save everyone time, money and ill will, but the parties wouldn’t go for it. There was a strong sense of principle at play – the parties felt that the athlete appellant had a right to fight, and the sport federation respondent had a duty to defend. In our second attempt, a version of a mini-trial was done and an opinion was provided to the parties, but it did not have any impact on positions taken. It remains to be seen how this case will end up.

We think the mini-trial is worth doing, and we have the capability at the Centre for Sport and Law to make it happen for you, where appropriate, as a part of our appeal management services. We also think that if more sport leaders know about this option, and could be educated about its benefits (and possible drawbacks, although at the moment we can’t think what they are), there will be a greater willingness to consider the mini-trial in suitable circumstances. If you would like to learn more about using a mini-trial as a way to address your dispute, feel free to contact us at the Centre for Sport and Law.

Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(1)

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