FINDING THE SOLUTION
FINDING THE SOLUTION
May 16, 2017 Litigation and Conflict Resolution
A settlement conference is a process undertaken for the amicable settlement of disputes for which legal proceedings have been instituted and in respect of which the parties involved wish to reach a consensus to put an end to the legal debate sooner than is possible with the current judicial system.
A settlement conference is chaired by a judge who acts as a mediator and whose ultimate goal is to get the parties to find a common ground with which they are both satisfied, to the full extent possible.
Some cases are more suitable for a settlement conference than others. When a settlement conference is possible, the only prerequisite for this alternative dispute resolution method is the parties’ willingness to participate with the serious intention of reaching a consensus in order to put an end to the dispute with an amicable agreement.
Moreover, settlement conferences are not limited to any specific areas of law, but rather can be held in family matters, civil matters, commercial matters, and real estate matters, among others, both at the trial and appeal levels. Our lawyers regularly use this less traditional method to reach amicable resolutions of civil disputes, real estate disputes, construction disputes, and commercial disputes.
Once legal proceedings have been instituted, a settlement conference may take place at nearly any stage. However, it can only take place when all parties are ready and willing to participate, which can vary. Of course, neither party is bound to accept an offer that it deems to be unsatisfactory; the judge is present only as a mediator and is not endowed with decisional power for resolving the dispute at this stage. That being said, settlement conferences are successful in over 80% of cases.
The goal of a settlement conference is to lead the parties to make compromises, of their own accord, that allow them to reach an equitable and mutually acceptable out-of-court settlement in order to avoid a trial, the judicial system’s delays, and above all, the cost of litigation, which can in some cases be significant.
The main advantage for the parties to participate in a settlement conference is their ability to control its outcome. Specifically, at a settlement conference, the parties can negotiate a solution to their dispute; however, at trial, the parties entrust a judge with the outcome, who will decide based on the proof presented before him.
The general procedure for a settlement conference is informal, with the parties, accompanied by their lawyers, sitting around a table with a judge who helps the parties reach a consensus. A settlement conference allows the parties to speak to each other, face to face, and to communicate, which is essential for facilitating the conclusion of an agreement to put an end to their dispute.
However, the nature and content of what is said at the settlement conference is entirely confidential, without admission and without prejudice to the parties’ rights, in order to promote the free exchange of information between the parties. Lawyers generally play a more subdued role at a settlement conference; they are present to explain the legal basis for their respective client’s assertions, as needed, as well as to assist and counsel their clients. Prior to the settlement conference, the parties sign a confidentiality agreement by which they undertake not to disclose the content of the exchanges, testify on what was revealed in the event of a trial, nor use the documents submitted at the settlement conference as evidence in the event of an impasse.
In a settlement conference, the parties have the opportunity to temporarily withdraw to another room to discuss the other party’s offers with their own lawyers, which sometimes facilitates the discussion and allows the parties to take a step back.
The judge who acts as a mediator at a settlement conference plays an active role as a facilitator of the negotiations, seeking to bring the parties closer to resolving their dispute. It is important to specify that, in the event no settlement is reached at the conference, this judge will not preside over the trial, and the judge who hears the case will in no way be made aware of what happened at the settlement conference.
When the settlement conference results in a solution to the dispute, an agreement is drafted on the spot and immediately signed by the parties. Often, this agreement is submitted to the judge presiding over the settlement conference so that it may be legally binding in the same manner as a judgment rendered by the Court. Specifically, the agreement reached between the parties may be homologated, which will save them from having to restart the judicial process in the event that one of the parties defaults on his obligations.
In the event of the settlement conference’s failure, the judicial file follows its normal procedural course. The parties’ participation in a settlement conference does not invalidate the judicial process, but rather serves as an opportunity for the parties to express their views of the facts to the other party, in the presence of a judge, in order to find a common ground.
The settlement conference therefore plays an important role in the resolution of judicial disputes, and we favour this alternative dispute resolution method when appropriate and when the parties wish to participate. We are of the opinion that a settlement conference constitutes a unique forum for allowing the parties to a dispute to communicate directly and decide, between themselves, the outcome of their dispute.
This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.Back to the list of publications - Litigation and Conflict Resolution