Inside resolution outside of court: Exploring options for settling disputes without going to trial

In this article, we’ll describe settlement conferences and how to prepare for them

 

 

The Complete Guide to a Settlement Conference:

 

• What is a settlement conference?

• Who attends a settlement conference?

• What is the role of the settlement conference judge?

• What happens in a settlement conference?

• How long does a settlement conference last?

• How to prepare for a settlement conference

• Things that do not usually work in a settlement conference

• Things that usually work in a settlement conference

• Possible outcomes of a settlement conference

 

What is a settlement conference?

Settlement conferences and mediation are tools for trying to settle a dispute without going to trial. It is a meeting where the parties to a lawsuit come together to try to reach an agreement. The process is sometimes referred to as Alternative Dispute Resolution.  In both mediation sessions and in settlement conferences it is still the parties (and their legal counsels) who make their own decisions on how to resolve their disputes, as opposed to a third party (such as the trial judge) making the decisions for them.

The conference can be initiated by either party, but it is frequently ordered to occur by the court and most often used to settle civil matters such as divorces, parenting plans, personal injuries, contract issues, etc.

 

Who attends a settlement conference?

The requirements vary across jurisdictions; however, a court-ordered settlement conference is usually presided over by a judicial officer or a settlement conference judge – a different judge than the trial judge. And in general, the parties and their legal counsel are required to attend.

A private mediation is handled very much the same except the facilitator will not be a sitting judge. They will most likely be an experienced attorney or retired judge, selected and agreed to by the parties.

 

What is the role of a settlement conference judge or mediator?

The role of the settlement conference judge or mediator is that of an impartial, neutral facilitator. He or she is there to help the parties negotiate toward a mutual agreement.  Occasionally, he or she may give his or her opinion about the case. However, this opinion is generally solicited by a party’s attorney for a specific purpose, for example, to reality-check the risks of a decision that party is about to make; and it usually happens when the conference judge is meeting with a party individually.

Occasionally, a settlement conference judge may issue orders, even if a case is not settled; for example, in a divorce case, the judge may appoint a Guardian Ad Litem (GAL) for any dependent children.  Otherwise, it is important to remember that the settlement conference judge or mediator’s role is not to pass judgement, but to facilitate a mutual agreement between the parties in order to avoid trial.

 

What happens in a settlement conference?

The proceedings of a settlement conference may vary across jurisdictions, and even among the people presiding over the conferences, as they can determine the structure of the session. Typically though, a settlement conference includes the following stages:

• Pre-conference briefing: prior to the conference, both parties’ legal counsel informs the judge about the case; they may disclose some facts and/or evidence to support their case.
• Conference judge’s opening statement: the person presiding over the conference briefly introduces the case and the proceedings.
• Parties’ opening statements: the legal counsel for each party may or may not be given the opportunity to make a brief presentation of the case. Or, in some instances, the parties themselves may make statements.
• Negotiation: the settlement conference judge or mediator will make a decision on how to conduct the process. In settlement conferences both parties are generally in the same room with each other and their attorneys.  Mediators tend to meet separately with each party and their legal counsel; he or she may go back and forth several times between the parties.
• If a settlement agreement is reached, the judge or mediator will likely ask the parties to sign a document that contains the terms of the settlement agreement. This document may be immediately filed with the court or transitioned into a more formal agreement that is later presented to the court.
  • If you are in court for a settlement conference, the legal proceedings may continue. For example, a divorce could be finalized or a parenting plan could be entered by the court.  If so, the parties will have to read the agreement out loud and be recorded by a court reporter or a recording device, as testimony to create an official record. Subsequently, in order to make the agreement legally binding for both parties, the terms of the agreement will be incorporated into the documents to be filed with the court.
• In a mediation setting, any agreement reached would have to be filed with the court at a later date.
• If an agreement cannot be reached, the settlement conference judge or mediator may recommend a second settlement conference or mediation session. If it appears that the parties are at an impasse, the parties and their legal counsel may have to prepare for trial.

 

How long does a settlement conference last?

The duration of a settlement conference may vary among jurisdictions. However, due to usually tight court schedules, time is generally limited. For example, in Thurston County, settlement conferences usually last one hour. The preparation and work leading up to a settlement conference, however, can take a couple of weeks.  A private mediation can (and should) be scheduled for a specific length of time. Keep in mind that you are paying for the mediator’s services on a hourly basis.

 

How to prepare for a settlement conference

The judge presiding your settlement conference will send you and/or your attorney a notice telling you how to get ready for the settlement conference. These instructions vary across jurisdictions. You should work with your attorney to prepare for the conference: he or she will ensure that every step is covered thoroughly.

• Follow the judge’s instructions carefully.
• Prepare the required paperwork.
• If you include exhibits, label the exhibits by number and refer to them that way in the relevant paperwork.
• If you give the settlement conference judge paperwork, you must also give it to the other party’s lawyer. If the other party does not have a lawyer, give the documents directly to the other party.
• Make the necessary copies of all the paperwork.

An experienced lawyer can make the difference in preparing your case for the settlement conference, particularly if the case involves complex situations and assets.

 

 

Things that usually do not work in a settlement conference

• Going it alone, without your attorney: this is especially true for more complex cases; for example, where major assets are involved.
• Being unprepared: this includes not cooperating with your attorney, not following the instructions of the settlement conference judge prior to the conference, having disorganized or inaccurate documents and paperwork, having done no “homework”, for example to solve doubts and questions with your attorney beforehand.
• In general, all the behaviors that do not work in mediation, such as keeping fixed positions, responding no to a proposal without offering a counter proposal, making assumptions without checking them, button pushing, etc. These behaviors will not move things forward and will end up “sabotaging the conference” and making trial necessary.
• Missing the conference: it may sound obvious, but if you miss the conference for no good reason, the settlement conference judge may make you pay a fine. If do have a good reason, you may ask for rescheduling. Good reasons include health, being out of town and other reasons that would make attending the conference “unduly burdensome”.

 

“Button-pushing can really break a settlement conference. But experienced mediators and attorneys will know how to help parties move past emotional issues.”

-Paul Posadas, Attorney with Divorce Lawyers for Men

 

 

Things that usually work in a settlement conference

• Finding the right attorney early on in the process and cooperating with him or her.
• Being well prepared: this involves following the instructions of the settlement conference judge prior to the conference, collecting and organizing relevant documents, and meeting with your lawyer beforehand to sort out doubts, questions, and any complex issues. Have a candid conversation with your lawyer: he or she will help you manage your expectations, and anchor them to the facts and to the law. In some cases, your lawyer and the other party’s lawyer will exchange offers/proposals before the conference, and this will help the conference move more smoothly.
• In general, all the behaviors that do work in a mediation: focusing on the future and keeping things moving forward, making clear requests and proposals, making counter proposals, being flexible and thinking out of the box, keeping it civil.
• Being on time the day of the conference.

 

Possible outcomes of a settlement conference

Similarly to mediation, a settlement conference empowers the parties to make their own decisions. As a result, when an agreement is reached it is more likely to be sustainable, even when it is a compromise. Reaching an agreement through a settlement conference may help getting a sense of closure, and it may make it easier to negotiate and reach agreements with the other party in the future, if further negotiation is needed.

It is important to discuss alternative means of resolving your case with your attorney and thoroughly weigh your options when making a decision on how to proceed.  Quality legal representation is also important to help you make the most of the opportunity that a settlement conference or mediation presents.