A settlement conference is a private hearing between the parties involved in a lawsuit, and a judge. At a settlement conference the judge presides over the conference, guiding settlement discussions between the two sides. As the costs of going to trial rise, settlement conferences have become an important part of civil litigation, that often allow the parties to resolve their dispute and avoid the costs and risks of a trial. Most importantly, a settlement conference is a discussion, and very little can happen at a settlement conference without consent of both parties. This means that the risk of a settlement conference is low, and the parties can focus on resolving their dispute. Discussions at a settlement conference are without prejudice, and cannot later be brought up in court if the case goes to trial.
Small Claims Court:
British Columbia Small Claims Court hears civil claims up to the amount of $35,000, with some exceptions. In a Small Claims case, both sides will file documents with the court called pleadings. The Claimant will file a Notice of Claim setting out their allegations, and the Defendant will file a Reply containing their response to the Plaintiff’s allegations. Once this happens, the parties will wait to receive a notice form the court registry notifying them of the date set for a settlement conference. In Small Claims Court a settlement conference is mandatory, and if you do not attend you may lose by default.
Supreme Court Settlement Conferences:
Cases that involve damages over $35,000, and cases specifically excluded from Small Claims Court, must be litigated in the British Columbia Supreme Court. Although settlement conferences are not mandatory in Supreme Court, it is still possible to have a settlement conference under certain circumstances.
Supreme Court Civil Rule 9-2 sets out when a settlement conference happens in Supreme Court. Both parties can agree to have one by filing a form, or a judge or master of the court can order that the parties attend a settlement conference. Like in Small Claims Court, the judge or master who presides over the settlement conference will help the parties to discuss settlement of their dispute. The judge or master who presides over the settlement conference will not preside over the trial unless all the parties consent.
What Happens at a Settlement Conference?
Each judge or master may conduct settlement conferences slightly different, but there are some common factors that you should know. Generally the judge will have read the pleadings and will know what the case is about. The parties may have a brief opportunity to set out their case, or the judge may launch right into asking questions of one or both parties regarding their case.
Ultimately the judge will try to start a discussion of settlement, often by asking the defendant if they are willing to make an offer to settle the case. Some judges weigh in on what they think are the merits of the case, or problems that they foresee with the case that would make it worthwhile to settle and avoid a trial. These judges may offer their opinion on the merits of the case so that the parties can make a more informed decision about whether they want to settle or go to trial. Other judges tend to focus less on the merits of the two parties’ respective cases, and more on getting a dialogue going between the parties. Either way, the goal is to see if the parties can agree on a settlement.
You will never have the same judge at a trial if the case ultimately goes to trial, because the settlement conference judge has heard the without prejudice discussion of the parties.
One thing to be prepared for is that you will likely be asked to compromise on your position. In our experience, settlement conferences are a pragmatic affair, where parties are discouraged from making a stand based on principals. Litigation to trial is expensive, in terms of costs if you have a lawyer, or in terms of time if you represent yourself. Going to trial is almost always a risky situation, despite how strong your case may be. There is always the possibility that the other side succeeds in convincing the judge. Parties are expected to take into account these costs and risks when discussing settlement, and usually judges will expect there to be movement on both sides.
You are perfectly entitled to stand on principal and refuse to compromise on your position at a settlement conference, but you should be prepared to defend that position if questioned on why you will not compromise. If you take this position, it’s probably more likely that your case will go to trial, because if you’ve ended up having to file a lawsuit, the other side is unlikely to suddenly change their tune and completely accede to your position.
In Small Claims, if the parties cannot reach an agreement, the judge often switches over to making administrative orders about the future trial and what must happen before trial. Usually these orders will include an order that the parties exchange document disclosure a certain number of days before trial. The judge may also ask you how many witnesses you intend to have testify at the trial. The judge will determine how much time is needed for the trial, which is very important. You should be prepared for these questions in case the trial does not settle, so that you can deal with any administrative matters while you are before the judge, and get clear orders about how to prepare for trial.
Why are Settlement Conferences Useful?
A surprising number of cases settle at the settlement conference or shortly thereafter. Having both parties in the same room, before an experienced and impartial individual, is an excellent opportunity to resolve the case. Things can move much more quickly when compared with sending written settlement offers back and forth. Perhaps most importantly, a settlement conference gives you a sneak peek at how the other side will appear at trial. You may hear about their case and learn why they think they will win at trial. This can be especially helpful if the other side’s pleadings are less than clear in setting out their position.
At a minimum, even if the case does not resolve, you will likely walk away from the settlement conference with a better idea of the other side’s case, which will enable you to better prepare for trial. You will likely know how they articulate their case in their own words, how well they present themselves before a judge, what witnesses they intend to call, and how much time they think the trial will take. All of this information will help you avoid being surprised at the trial, and will give valuable insight into how you should plan your own case to overcome the position of the other side.
Strong Negotiating Skills
Settlement conferences come down to negotiation. You will have a certain amount of leverage going into a settlement conference, depending upon how strong your case is. What you do with that leverage is up to you. Generally your goal is to maximize the amount that you recover, and to do this you need to highlight the strength of your case to the judge and the other side, increasing your leverage, and hopefully getting a better settlement offer out of the opposing party. At Velletta & Company we pride ourselves on being strong litigators, who understand both the benefits of negotiating a fair resolution, and the strategic value that can be taken away from a negotiation, even if you cannot reach an agreement. If you are facing an upcoming settlement conference, please feel free to contact us for a consultation.