Before the mini-industrial, the parties informally exchange key documents, exhibits, short letters and summaries of testimony. They also agree on the format, timing and procedures, and they can even make very short discoveries and receive short submissions from some of the key witnesses. The whole process usually lasts one to four days. Mediation has been used to resolve all kinds of conflicts, from international political disagreements and labour disputes to the competitions of landlords, consumers and medical abuse. In recent years, the company`s use of mediation has increased rapidly, in part in new imaginative forms. In 1982, IBM claimed that Fujitsu had illegally copied the software from IBM`s mainframe operating system. They reached an agreement in 1983, but other disputes continued to erupt, largely due to the technological complexity and legal uncertainty of many issues. In 1985, IBM requested arbitration proceedings, as required by the 1983 agreement. Two arbitrators were selected as panels, one law professor with experience in dispute resolution and the other a retired director of the IT industry. The arbitrators quickly saw that, without innovative thinking, the procedure is stuck in the same mud of technical and fingerpointing details that blocks the previously negotiated resolution. They refused to hear more concrete complaints. Instead, they ordered Fujitsu to submit a full accounting of the use of the programs covered by the 1983 agreement and to require the two companies to participate in mediation proceedings covering programs not included in the previous agreement. One known case of a successful mini-trial involved Allied Corporation and Shell Oil.
After five or six years of litigation over a contractual dispute, Shell finally filed a complaint. Four years later, legal fees had swallowed up hundreds of thousands of dollars and the judicial investigation was not over. Lawyers for both companies decided to use the Minitrial in a last-ditch attempt to resolve the case without trial. After a brief hearing, the parties re-opened the 10-year dispute almost at a time. We can only guess how much time, money and bereavement could have been avoided by trying a minitrial earlier. The hearing went smoothly and over the next two weeks, despite an early stalemate, the VPs reached an agreement that both sides described as a “win-win. No money has changed ownership. Instead, the companies renegotiated a new gas supply contract, which was not involved in the case, and created a new agreement for the transport of gas from Texaco to Borden.
The decision to seek arbitration is sometimes made after a conflict, but much more often, the parties have a clause in their contract that requires them to arbitrate disputes a result of their case. In labour relations, arbitration agreements are generally cited as the cornerstone of the appeals procedures in the collective agreement. In the case of intergovernmental or foreign trade, the United States Arbitration Act of 1925 makes the agreement legally applicable, and most states have similar laws for agreements that are not covered by federal law. When a court is asked to reconsider a decision, it can only hear complaints about the basic procedural fairness or the conduct of the arbitrator, not the merits of the case.