Danika Beaulieu – June 2019
When clients think of a court process, they often picture a Hearing or a Trial with two lawyers battling each other in front a judge constantly screaming “OBJECTION!” while attempting to destroy the other side’s arguments. While this is certainly a process that is available (although usually a lot less dramatic than it may appear on television), there are other court processes available that are a lot less adversarial and more cost conscious.
If you are a client of MDW Law, have had an Initial Consultation with us or are thinking of scheduling an Initial Consultation with us, I can almost guarantee we have or will discuss the possibility of participating in a Judicial Settlement Conference at some point during our meetings. I have found that Judicial Settlement Conferences have been the most effective, amicable, and inexpensive way for clients to reach an agreement without the need for a Hearing or a Trial. This is true for even some of the most difficult cases that I never believed would settle without a Hearing or a Trial.
I like to describe a Judicial Settlement Conference as a mediation with a judge. Settlement Conferences are conducted with all of the parties, their counsel (if applicable), and a judge. The purpose is to try to reach an agreement on all or some of the outstanding issues with the assistance of the judge. The judge participating in the Settlement Conference will not make a decision at the end of the Conference, nor will they be the judge hearing the matter if the matter proceeds to Court. Their purpose is to give their opinion to the parties and try to assist them in reaching an agreement that is acceptable to everyone involved.
Like any other process, there are pros and cons to a Judicial Settlement Conference. The pros of participating in a Settlement Conference are:
- They are cost efficient – participating in a Settlement Conference is a fraction of the price of a Hearing or Trial;
- They are more amicable – Settlement Conferences can help preserve your relationship with the other party. Hearings and Trials are extremely adversarial, and you often leave with a more fractured relationship than you had going in. This is troublesome if you must continue to parent a child together for many more years;
- The judge is able to give you their opinion – this is HUGE and one of the reasons why Settlement Conferences are so successful. It is extremely persuading to have a judge tell you whether they believe you would be successful or not at trial;
- You can feel “heard” – Settlement Conferences allow you to tell the judge why you are taking a certain position and why something in particular means so much to you. At a Hearing or Trial, your evidence is presented by way of Affidavits (usually drafted by your lawyers), and you are only able to answer questions that you have been asked;
- You get to choose your judge – Different judges have different areas of expertise. When you have a Trial or a Hearing, you are not able to choose your judge. However, when you schedule a Settlement Conference, you can choose the judge you believe would be particularly helpful in that situation; and
- They are effective – Approximately 90% of cases that go to a Settlement Conference settle at the Conference or shortly thereafter.
The cons of participating in a Judicial Settlement Conference are:
- They are voluntary – This means that both parties have to agree to participate in a Settlement Conference in order for a Settlement Conference to be scheduled;
- The judge cannot make a decision – If you are unable to reach an agreement on all outstanding matters at the Settlement Conference, the judge is not able to make a decision on those matters. This means that you may still have to proceed with a Hearing or a Trial; and
- They are “off the record”- Settlement Conferences are not recorded and the information discussed at the Settlement Conference is privileged. This means that if you are unable to reach an agreement, the discussions or negotiations that took place cannot be brought up or used in a Hearing (this may be a pro or a con depending on the conversations that took place).
If you believe a Settlement Conference could be helpful to you, please do not hesitate to contact one of our MDW Law lawyers for more information.