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If you do decide to cancel your subscription you may keep and continue to use the agreement provided as part of your trial. The judge who conducts the mini-trial will not sit as the trial judge and will keep his or her opinion of the case confidential.

Judicial mini-trials are currently used in Alberta [1] and in British Columbia [2]. Before discussing the possibility of mini-trial with other parties, one must first ensure that one's own internal management and key personnel are amenable to the process.

This begs the question, when is a mini-trial appropriate for the federal government? First, as one must ask with all ADR procedures, does the dispute involve matters of public law, policy or legal precedent for which a final disposition from the court is required?

If so, then a mini-trial is inappropriate. Second, do the parties wish to retain control over the dispute resolution process? If the parties want a greater degree of involvement and control over the outcome than is typically allowed in an adjudicative process, such as arbitration, then a mini-trial is an option.

Third, is the dispute substantial enough to justify the effort and expense required for a mini-trial? Although the mini-trial is indeed faster and less expensive than litigation, it nevertheless entails a significant amount of preparation and cost.

Have the parties first attempted to settle the dispute through face-to-face negotiations? Could this case be settled though negotiations at the senior management level? If so, then the cost of a mini-trial can be avoided. Fourth, is the case comprised predominantly of disputed questions of fact?

Questions of fact are always more amenable to consensual resolution processes than questions of law. Mixed questions of fact and law may also be appropriate for mini-trial if there is no need for a definitive judgment on the law.

It is better if the legal rules concerned are relatively clear so that a resolution of the disputed facts may clarify the legal outcome. Fifth, do the parties have a business relationship that they wish to maintain? The relative speed of this process and the cooperation required of the parties make it a useful tool in preserving a working relationship.

Sixth, are there numerous parties to the dispute? The formal structure of the mini-trial is a positive influence in multi-party conflicts. Once it has been determined that a mini-trial is appropriate, one must obtain the concurrence of the other party ies.

In general, a mini-trial is introduced later in the life of a dispute than other ADR processes, even after the commencement of legal proceedings.

Nevertheless, since one of the primary benefits of the mini-trial is to save time and expense, it is best to initiate the process before a significant amount of the legal costs have been incurred.

Generally, it is legal counsel who suggests the use of the mini-trial. One obstacle to initiating the process is the familiarity of the parties and counsel with the mini-trial.

Obviously, parties will only agree to the process if they are satisfied that it is a fair and workable procedure. If the client or opposing party ies are uncertain, one could provide them with advice or literature on the benefits of the mini-trial. The process is far more likely to be successful if the parties are comfortable with it and knowledgeable of its advantages and disadvantages.

In addition to client personnel who have been involved in the dispute and will assist counsel in preparing for the mini-trial, a representative of senior management must be selected who will sit on the panel with the neutral to hear each party's submission. This representative will also be responsible for negotiating a resolution with the other party representatives following the hearing.

Although one can conduct a mini-trial without the assistance of a neutral, the process is greatly enhanced by having the neutral present. The neutral may:. The powers that the neutral exercises in any given mini-trial are determined by the parties and expressly laid out in the Mini-Trial Agreement.

The nature of the role that the parties wish the neutral to play eg. non-binding arbiter, mediator, technical expert? will help determine where the parties want to look to select this key participant.

The parties should clarify between themselves what this role will be before commencing the selection process. The Agreement specifies the rules and procedure which will govern the mini-trial.

Drafting the Agreement is obviously a critical step in the process, one which should be attended to carefully as it will influence the success of the process.

One of the primary advantages of counsel and clients' role in crafting the Agreement is its resulting flexibility. Each element of the procedure may be structured by the parties to best fit the dispute at hand. Counsel and party representatives should all participate in drafting the mini-trial agreement.

The neutral may also lend important process assistance and may be given the authority by the parties to make a decision on any disputed procedural step. An experienced neutral may also be able to advise parties and counsel on what types of procedural choices work best. A sample mini-trial agreement is found in this Module as Annex B.

It includes some of the procedural details that will have to be addressed when drafting your own mini-trial agreement. The role of counsel in a mini-trial is not unlike that during litigation. In general, counsel will prepare their client's case, handle discovery and the development of witness statements and position papers to be exchanged, and make an abbreviated presentation of the case before the panel.

Unlike litigation, counsel also plays a fundamental role in drafting the Mini-Trial Agreement. Counsel generally plays the role of advocate during the mini-trial. This differs from the more conciliatory or settlement-oriented role that counsel may play in other ADR procedures such as mediation or negotiation.

In the mini-trial, it is the client representative who will be responsible for negotiating a settlement. As mentioned, the mini-trial is a settlement technique that aims to facilitate efficient and effective resolution of civil disputes. A few of the advantages to be gained through the mini-trial process are as follows:.

While arbitration clauses are now generally enforceable under provincial and federal arbitration acts eg. Commercial Arbitration Act as well as under case law, other methods are not governed by legislation. The courts, however, may be willing to uphold ADR agreements, first as a contractual obligation; second by likening the ADR agreement to an agreement to arbitrate, the latter being specifically enforceable; and third in recognition of the fact that public policy favours alternatives to litigation where these alternatives serve the interest of the parties and of judicial administration.

Under the doctrine established in Scott vs. Avery 10 All E. A party's success in enforcing the use of the mini-trial clause may well be improved by the addition of an express provision that no legal action may be brought until the mini-trial has been attempted in good faith.

Note that one cannot compel a party to actually resolve a dispute through the mini-trial process. Because the mini-trial is consensual in nature, there is no right of appeal. It is obvious that a party cannot appeal from a settlement that the party itself willingly entered.

If that willingness or knowledge of a party is in question, or if a problem arises as to the implementation of the agreement, then recourse lies with the court, not as a matter of appeal but as a question of first instance under contract law.

One very important element of any collaborative process is the authority of all of the parties at the table to commit to an agreement, once reached.

In the context of a mini-trial, this authority is required at the negotiating stage which follows the panel hearing. With many corporate parties, there may well be instances where an agreement reached during the creative process of negotiation is beyond the scope of the party's current mandate and the party is required to give but conditional consent pending ratification from the decision-making body of that party.

The key in such a situation is to obtain that consent as quickly as possible so that the agreement that the parties worked so hard to craft does not fail for lack of momentum or commitment from the party requiring authorization.

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The reporting entities have not contracted with each other in the past and are negotiating the terms of the agreement. No revenue should be recognized if the reporting entity provides services to the customer prior to understanding its rights to receive consideration.

The payment terms for goods or services must be known before a contract can exist, because without that understanding, a reporting entity cannot determine the transaction price. This does not necessarily require that the transaction price be fixed or explicitly stated in the contract.

Refer to RR 4 for discussion of determining the transaction price, including variable consideration. A contract has commercial substance if the risk, timing, or amount of the reporting entity's future cash flows will change as a result of the contract.

If there is no change, it is unlikely the contract has commercial substance. A change in future cash flows does not only apply to cash consideration.

Future cash flows can also be affected when the reporting entity receives noncash consideration as the noncash consideration might result in reduced cash outflows in the future. There should also be a valid business reason for the transaction to occur. Determining whether a contract has commercial substance can require judgment, particularly in complex arrangements where vendors and customers have several arrangements in place between them.

The objective of the collectibility assessment is to determine whether there is a substantive transaction that is, a valid contract between the reporting entity and a customer.

The assessment of whether an amount is probable of being collected is made after considering any price concessions expected to be provided to the customer. A reporting entity that expects to provide a price concession should assess the probability of collection for the amount it expects to enforce that is, the transaction price adjusted for estimated concessions.

Additional implementation guidance is included in the revenue standard to clarify how management should assess collectibility. A reporting entity typically will not enter into a contract with a customer if there is significant credit risk without also having protection to ensure it can collect the consideration to which it is entitled.

The guidance clarifies that the collectibility assessment is not based on collecting all of the consideration promised in the contract, but on collecting the amount to which the reporting entity will be entitled in exchange for the goods or services it will transfer to the customer.

These concepts are illustrated in Example 1 of ASC ASC through ASC L. The distinction is important because a price concession is variable consideration which affects the transaction price rather than a factor to consider in assessing collectibility when assessing whether the contract is valid. Refer to RR 4.

The assessment should not be limited to past business practices. For example, a reporting entity might enter into a contract with a new customer expecting to provide a price concession to develop the relationship.

Refer to Revenue TRG Memo No. These concepts are illustrated in Examples 2 and 3 of the revenue standard ASC through ASC Question RR A reporting entity provides payment terms that are extended beyond normal terms in a contract with a new customer.

Should management conclude that the amounts subject to the extended payment terms are not probable of collection? Extended payment terms should be considered when assessing the customer's ability and intent to pay the consideration when it is due; however, the mere existence of extended payment terms is not determinative in the collectibility assessment.

Management's conclusion about whether collection is probable will depend on the relevant facts and circumstances. Management should also consider in this fact pattern whether the reporting entity expects to provide a concession to the customer and whether the payment terms indicate that the arrangement includes a significant financing component refer to RR 4.

Assessing collectibility for a portfolio of contracts. In this scenario, management could conclude that collection is probable for each contract within the portfolio that is, all of the contracts are valid even though it anticipates some unidentified customers will not pay all of the amounts due.

The reporting entity should apply the revenue model to determine transaction price including an assessment of any expected price concessions and recognize revenue assuming collection of the entire transaction price.

Management should separately evaluate the contract asset or receivable for impairment under ASC or for credit losses under ASC , Financial instruments — credit losses, once adopted. Example RR illustrates this accounting.

EXAMPLE RR Identifying the contract — assessing collectibility for a portfolio of contracts. Wholesaler sells sunglasses to a large volume of customers under similar contracts.

Before accepting a new customer, Wholesaler performs customer acceptance and credit check procedures designed to ensure that it is probable the customer will pay the amounts owed. Wholesaler will not accept a new customer that does not meet its customer acceptance criteria.

Wholesaler concludes that control of the sunglasses has transferred to the customers and there are no remaining performance obligations. Wholesaler believes its historical experience reflects its expectations about the future.

Wholesaler intends to pursue full payment from customers and does not expect to provide any price concessions. Wholesaler should evaluate the related receivable for impairment based on the relevant financial instruments standard. An arrangement is not accounted for using the five-step model until all of the criteria in RR 2.

Management will need to reassess the arrangement at each reporting period to determine if the criteria are met. Consideration received prior to concluding a contract exists that is, prior to meeting the criteria in RR 2.

The reporting entity should not recognize revenue from consideration received from the customer until one of the following criteria is met. Excerpt from ASC When a contract with a customer does not meet the criteria … and an entity receives consideration from the customer, the entity shall recognize the consideration received as revenue only when one or more of the following events have occurred:.

The third criterion is intended to clarify when revenue should be recognized in situations where it is unclear whether the contract has been terminated. Example RR illustrates the accounting for a contract for which collection is not probable and therefore, a contract does not exist.

EXAMPLE RR Identifying the contract — collection not probable. At contract inception, EquipCo determines that the customer does not have the ability to pay as amounts become due and therefore collection of the consideration is not probable.

EquipCo intends to pursue collection and does not intend to provide a price concession. EquipCo delivers the equipment at the inception of the contract. EquipCo continues to provide maintenance services, but concludes that collection of the remaining consideration is not probable.

EquipCo cannot recognize revenue for the partial payment received because it has concluded that collection is not probable. EquipCo cannot recognize revenue for cash received from the customer until it meets one of the criteria outlined in RR 2.

In this example, EquipCo has not terminated the contract and continues to provide services to the customer.

EquipCo should continue to reassess collectibility each reporting period. Question RR Can a reporting entity recognize revenue for nonrefundable consideration received if it continues to pursue collection for remaining amounts owed under the contract for an arrangement that does not meet all of the criteria to establish a contract with enforceable rights and obligations in RR 2.

Reporting entities sometimes pursue collection for a considerable period of time after they have stopped transferring promised goods or services to the customer.

Management should assess whether the criteria in RR 2. We believe that management could conclude that a contract has been terminated even if the reporting entity continues to pursue collection as long as the reporting entity has stopped transferring goods and services and has no obligation to transfer additional goods or services to the customer.

Question RR If a reporting entity begins activities related to a performance obligation for which control will transfer over time for example, begins manufacturing a customized good or constructing a building before a contract meets the criteria described in RR 2.

Thus, once a contract is established, a reporting entity should generally recognize revenue for any promised goods or services that have already transferred to the customer that is, revenue is recognized on a cumulative catch-up basis.

Refer to RR 6. Reporting entities generally should not recognize revenue on a cumulative catch-up basis for distinct goods or services provided for no consideration prior to contract inception for example, as part of a "free trial". Refer to Example RR Once an arrangement has met the criteria in RR 2.

The determination of whether there is a significant change in facts or circumstances depends on the specific situation and requires judgment. For example, assume a reporting entity determines that a contract with a customer exists, but subsequently the customer's ability to pay deteriorates significantly in relation to goods or services to be provided in the future.

Management needs to assess, in this situation, whether it is probable that the customer will pay the amount of consideration for the remaining goods or services to be transferred to the customer.

The reporting entity will account for the remainder of the contract as if it had not met the criteria to be a contract if it is not probable that it will collect the consideration for future goods or services.

This assessment does not affect assets and revenue recorded relating to performance obligations already satisfied. Such assets are assessed for impairment under the relevant financial instruments standard. Also refer to Revenue TRG Memo No.

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