My Experiences at Settlement Conferences

During my time in Law School, I took several negotiation and Alternative Dispute Resolution (ADR) classes. In these classes, we experimented with different types of negotiating styles and strategies. Throughout my articles with MB, I have had the opportunity to apply what I learned in school to real-world scenarios and to further develop them in the context of settlement conferences. Accordingly, here are the top five lessons I have learned:

Managing client expectations can be critical....

Know your File

Knowing the ins and outs of your file will allow you to take part in meaningful discussions in order to possibly settle the file. Even if the matter doesn’t settle, I have found that knowing your file well will allow you to ask the right questions, enabling you to fill in any gaps of information in the file, which will assist you in the long run.

Put your Money where your Mouth is

The ultimate purpose of a settlement conference is to settle a matter. This will not be possible if one attends without the authority to settle. This is why it is critical for you to attend with settlement authority or with someone who has such authority. Interestingly, Rule 13.02 of the Rules of the Small Claims Court requires the party and their representative (if any) to participate in the conference either by personal attendance or by telephone/video conference.

Manage Expectations

Managing client expectations can be critical to maintaining a positive ongoing relationship with the client. I have found it fruitful to take some time prior to the settlement conference to speak with the client and go over what to expect such as the risks of going to trial and the weaknesses of the case. This discussion can make settlement much more likely to occur. For instance, when discussing the potential issues when enforcing a judgment, a client may prefer $5,000 immediately as opposed to expending further resources to collect $10,000 over a period of time.

Integrative Negotiating

I have found that this method works well for me and has led me to obtain successful results. This form of negotiating refers to uncovering the deeper interests/stakes of the parties so as to allow for a more meaningful discussion. The famous “orange” example demonstrates this model of negotiating. Specifically, two individuals are fighting over an orange. As a form of resolution, the two individuals simply split the orange in half. On the surface, this appears to be a fair deal. However, if the parties had taken the time to uncover their true interests, they would have realized that one of them only wanted the orange peel for its zest and the other wanted the orange for its juice. Had the parties employed this method they would have each gotten 100% of what they wanted rather than just 50%.

Live to Fight Another Day

I have found that sometimes a file is simply not ready to be settled. Perhaps all necessary documentation has not been exchanged or another issue has come up such as the spoliation of evidence. Therefore, rather than attempting to force settlement and risking an unfavourable settlement, it may be a better idea to obtain consent of the parties and adjourn the matter to a later date.

Shayan K

Pre-Trial Conferences: Down to the Wire

Television shows like The Good Wife or Suits often glamourize the life of the lawyer, and make it seem like trials are an everyday occurrence. Many of these legal dramas showcase a different trial in each episode. The reality, though, is very different. The scarcity of judicial resources, coupled with the financial burden and the extraordinary length of time spent litigating matters means that the legal system is inclined to push for settlement before trial. However, there are times when matters simply cannot be resolved. It is then that lawyers must take on the task that we see so often on television, and proceed to trial, complete with witnesses, robes, and sometimes even juries.

...the parties agreed that a pre-trial conference might be the best route towards agreement on some issues...

For the last few weeks, I have had the opportunity to assist with one of the upcoming trials at our firm. The case was complex, with multiple parties and many issues in contention. In fact, the trial was originally scheduled to go on for several weeks! With the start date looming, and with the knowledge that a protracted trial would not be in anyone’s best interests, the parties agreed that a pre-trial conference might be the best route towards agreement on some issues, if not a final resolution.

Pre-trial conferences are one of the last few opportunities for parties to sit down and attempt to reach a settlement before proceeding to trial. In many ways, a pre-trial conference is like a mediation, only in a more formal court setting. A judge will offer his or her candid advice on the prospects of success for the parties at trial, and suggest opportunities for resolving the dispute. More often than not, matters will be resolved at these pre-trial conferences.

Having worked on this file beforehand, I knew that an actual settlement was unlikely. This would be the second pre-trial conference after the first had failed. The parties had strikingly different positions on the legal and factual issues. Nevertheless, I still jumped at the opportunity to attend the conference and see how things would end up.

Mr. Justice Todd L. Archibald

On the exact same day as this second conference, our firm held a client seminar on pre-trial conferences.  The attendees were very fortunate to be joined by Justice Archibald, who provided his personal insights on how these conferences are run, and how parties should approach such conferences. As luck would have it, both the mock pre-trial and the actual pre-trial conference were led by the same judge!

While at the seminar, Justice Archibald shared his thought process when presiding over a pre-trial conference. At the very beginning, His Honour would speak to counsel to obtain a lay of the land. This would afford him an opportunity to gauge the matter and each parties' respective positions. This also allows counsel to be candid about their positions without the added pressure of having their clients present. Justice Archibald then holds individual caucuses with each party and their counsel. He attempts to be as honest as he can be, and tell each party where they stand; where their positions are strong, and where it may be a better idea to back down. By being forthright in his opinions, Justice Archibald has been able to settle a vast majority of the cases put before him. In fact, he was similarly able to quickly settle the mock pre-trial conference held at the seminar in a record 60 minutes! (But he did stipulate that these proceedings would, in fact, take a day or two to get all parties to this stage.)

MB's Transportation Mock Pre-Trial

Having heard all of this at the seminar, I was eager to see how Justice Archibald would be like in a real pre-trial conference. It quickly became clear that everything he shared was true. From his approach to speaking with the various parties, to his incredible ability to quickly cut to the chase, Justice Archibald showcased all the methods he discussed when managing this conference. And, just like at the seminar, Justice Archibald was able to settle this real legal case too.

So, unlike those legal dramas I mentioned earlier, I won’t get the opportunity to watch this case unfold under the auspices of a courtroom. But, what matters most is that everyone involved obtained results that led to a just and final settlement.

Go to MB’s Mock Pre-Trial Handouts page to read the Mockuments: Fact Summary, Pre-Trial Memos, and the Case Summary.

Victoria M.