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    Papers on The Settlement Conference and Written Offers to Settle (4/12)
    Posted: 2010-09-30 08:05:37

    By Marcel D. Mongeon

    The following is a passage from an essay by Marcel D. Mongeon, Deputy Judge, Small Claims Court of Ontario. We’ve divided this paper into a series of 12 posts.

    Document Brief

    The ideal documentary preparation for a settlement conference includes the following:

    • Additional copies of original claim and defence together with any additional documents such as defendant's claims etc

    • Copies of all relevant documents

    • Copies of written expert reports

    • List of all proposed witnesses

    • Will say statements of all witnesses signed by the witness

    All of these documents are likely to add up to 50 or more pages. Because of this, it is important that in preparing them for the court, each document be tabbed, all pages numbered and the overall document bound in a permanent fashion. The following practical tips can save a lot of grief later on:

    • One master copy of all of the documents should be prepared first

    • Each document in the master copy should be tabbed on a temporary basis with Post-It tabs

    • An index of all documents should be prepared

    • Each page in each document should be serially numbered – each document should restart the numbering at 1

    • Only when you are satisfied with the overall master copy should you prepare at least 4 copies: 1 copy for the court file; 1 copy for yourself; 1 copy for the other side and 1 copy for the witness

    • Use an office copy shop to make the copies, insert the tabs and bind the books

    • Check each copy against your master

    Of the five types of suggested documents, it is important to highlight the Will Say statement. Although lawyers will agree that such statements are useful to have and can be excellent tools to prepare a case with, they are rarely seen at settlement conferences. Although it is understandable why self-represented parties might not have such statements ready to discuss with the court at a settlement conference, one wonders why lawyers and paralegals are not prepared with such documents? After all, rule 13.03(3) makes it clear that the parties and their representatives are to “openly” and “frankly” discuss the issues involved in the action at the settlement conference.  How could a representative do this if they did not know what their client's witnesses were prepared to say?

    Will Say statements do not need to be complicated or follow any specific form. However, they allow the parties to fully understand why this witness will be important to the case. An example of such a statement is found as a schedule to this chapter. As can be appreciated by reading such a simple statement, a case is much better understood through the eyes of a witness. It also highlights weaknesses and because it is easier to read than to actually hear a party tell their story, a more efficient use of the court's time.

    Before the Conference

    Somewhat surprising is that the settlement conference is the first time that many parties communicate with each other since the events that resulted in the case. Obviously, if there has been no communication between the parties except the sending of court documents, there will have been no possible discussion of settlement or the relative merits of claim and defence. As between unrepresented parties, the lack of communication is understandable from the likely animosity between them. However, it is less understandable when one or both sides are represented by members of the law society.

    Although we will leave offers to settle to the next chapter, some communication with the other party even before the settlement conference can be an effective preparation tool. Opening the lines of communications like this can provide information as to whether or not the other party knows about the upcoming settlement conference and will be attending. If one or the other parties is looking to reschedule for a more convenient date, the communication can deal with this more effectively by canvassing possible adjournment dates.

    Communication before the settlement conference – especially from a member of the law society – can canvass if the other party – especially if not represented – is aware of their disclosure obligations and to put a more neutral face on the adversarial experience. Such a communication might also lead to a realization on the part of an unrepresented party that they should seek representation if the matters are complicated or involve difficult issues that may require a legal argument to resolve.

    An initial communication can be by letter or by telephone. If by letter, the following form could be used:

    Dear Defendant's representative:

    I am the plaintiff in the case of Ramachandran v. Chow, Pleasant Grove Small Claims Court File 1432/10. I understand from the court that a settlement conference has been scheduled for September 23, 2010 at 10:45 am. I am ready for this settlement conference and will expect to see you and Mr. Chow at the court at that time.

    As required by the court, I am enclosing a binder of all my documents and including my list of proposed witnesses. I will expect to receive your documents and list at least 14 days before the settlement conference as required by rule 13.03(2). If this does not happen, I may suggest to the court that costs be awarded to me by rule 13.02(7)(b). If there is anything you would like to discuss, please contact me. My telephone number is 416 555 1391 and I can usually be reached at this telephone number in the afternoons.

    Yours truly,

    As can be appreciated, even a short letter like this can help ensure that things continue to run smoothly between the parties. Although there are some points of this suggested letter that might seem rigid, the reality is that reminding the other party – especially if they are self-represented – of the rules will ensure they can't argue that they don't have to comply with them.

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