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    Papers on The Settlement Conference and Written Offers to Settle (6/12)
    Posted: 2010-10-14 08:05:39


    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.

    Conduct of the Conference

    Depending on which court the settlement conference is taking place in, there is one of two possible scheduling systems that are in use. If you are concerned as to which one is in use, it is useful to check with the clerk's office a few days before the conference.

    One system sets all settlement conferences at specific intervals. Usually at 45 minute intervals, the conference assumes that the parties will be present at the time scheduled and that they will not have to stay for longer than about an hour. The second scheduling system sets 3 or 4 matters for hearing at the same time (usually 10:00 or 2:00 pm). The judge then manages their matters over the next few hours.

    Both systems have their relevant merits and drawbacks which will not be reviewed further. What is important is to understand which system is in effect and how to deal with it.

    There are a number of other variations throughout the province in how settlement conferences are conducted. Some centres will have a clerk who will assist the judge call matters and otherwise manage the paperwork, other centres leave the judges to fend for themselves calling parties and dealing with all paperwork and moving people in and out. Some centres use courtrooms for settlement conferences and others use other types of meeting rooms available in the courthouse. Some centres will have additional rooms available for private discussions, others will not. Again, if any of these points is important for you, it is useful to visit the courthouse in advance.

    It should be kept in mind if visiting the courthouse ahead of time that one thing you will not be able to do is sit in on a settlement conference for someone else. Rule 13.03(4) makes it clear that settlement conferences are conducted in private.

    Parties will be summoned into the room where the settlement conference is being conducted. The usual setup of the room is for parties, any representatives and the presiding officer (deputy judge or referee) to sit at one or more tables. Some presiding officers will suggest that the plaintiff sit on the judge's left with the defendant on the judge's right as for a trial.

    The judge is likely to begin with an opening statement that is the same for all settlement conferences. The following would be common to hear:

    Judge: I am a judge of the local small claims court. If a trial in this matter becomes necessary because we are unable to settle this matter, I would not be the judge to hear the matter. The reason for this is that this is an “off the record” meeting. Neither myself nor any of the parties will discuss the matters that we will discuss here today or refer to them outside of this room.

    This is likely the first time that you, the parties, are discussing this matter between yourselves. It is also the first time that a judge like myself is considering the claim and defence that have been made in this case.

    We have a few objectives for this procedure. As the name “settlement conference” suggests, we will consider if this matter can be settled without the need for a trial. Obviously, there are a number of good reasons why you should seek to settle this matter: you will not need to come back to court for the trial and, if you settle, you can take some pleasure in the fact that you were able to decide your own future rather than having a judge make decisions affecting your lives.

    I will regularly tell parties when I encourage them to settle that my best judgement in any case is always worse than any settlement that the parties may make for themselves. Obviously, in order to settle this matter, you may have to compromise or reduce the expectations that you came into this room with. Against such a reduction, I remind you that from this point on you will still have a great deal of time, effort and money to get ready for trial.

    Given the rules of the small claims court system, it is unlikely that you will receive anywhere near a full indemnity for any of that even if you win your case. Accordingly, you should keep that in mind when you consider a possible settlement.

    If we are not able to settle this case, some of our other objectives here today include ensuring that we understand what the issues are in this case, making sure that the parties are ready for trial, ensuring that you understand what your obligations are at trial and making sure that you have made a full disclosure of all of the facts that you are aware of.

    At some point early in the conference, the court is likely to ask all of the people in the room to identify themselves. Who is allowed in the room is up to the discretion of the judge. Certainly, the named parties and their representatives are permitted (r. 13.02(1)). If someone else is required to approve a settlement (this will likely happen where a business or company is a party) then they must at least be available by telephone (r. 13.02(2)).

    Practice varies with respect to the need to have represented parties present. Rule 13.02 (1) provides that a party shall attend “unless the court orders otherwise.” If a party is represented by a “lawyer or agent”, that person shall also attend. (The use of the phrase in the rules “lawyer or agent” also needs to be read in conjunction with section 26 of the Courts of Justice Act which provides who may act as an agent for a party.) There is an inherent 'Catch 22' for a representative who doesn't have their individual party present. The catch is that, technically, they need to ask the court's permission to exempt their client from attending the settlement conference but that permission is generally only sought at the opening of the settlement conference. If the judge says no then there may be costs consequences pursuant to rule 13.02(5). The most prudent course of action if representing an individual party is to have them attend. (In the case of a corporate party, it can be argued that the representative acts as both the lega representative and the representative of the corporate party. Rule 13.02(2) could also be referred to to support such an argument.)

    There is nothing in the rules that requires non-party witnesses to attend a settlement conference.

    Although not prescribed by the rules, the Notice of Settlement Conference in common use makes it clear that witnesses do not have to attend. If a party brings their witnesses, they will likely be told to wait outside by the judge pursuant to r. 13.03(4).

    Sometimes parties will bring other people with them such as family members or friends to provide them “moral support”. Unless such persons are seeking to be a party's agent under section 26 of the Courts of Justice Act, it is unlikely they will be permitted to stay in the settlement conference room.



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