What is a Settlement Conference?
A settlement conference is a specific step taken in the family court process. At times in the family law process, parties may – or may be required to – hold settlement discussions and try to resolve their differences. If these resolution attempts fail, the court may be asked to hold a conference to assist the parties in satisfying the family dispute resolution rules.
The family court rules require parties to try attempting to resolve their dispute before applying to the court for relief. If they cannot do so, the courts encourage them to hold a settlement conference – also known as a settlement conference brief, pre-trial conference or pre-trial settlement conference.
Settlement conferences are held in the family law courts which sit in Toronto, Ottawa, Prescott, Kingston, Kitchener, Brampton and Barrie. "The form of Proceedings" notice issued by the family law courts will specify in which court a settlement conference is to be held.
At a settlement conference , each party and his or her lawyer are expected to prepare and exchange (unless the court orders otherwise) a pre-conference statement and to bring the following items to the conference:
Settlement conferences are attended by a judge and court staff. Only those individuals "necessary for the purposes of the trial" can attend the settlement conference. In other words, if you have a lawyer, your lawyer is the only one who will attend on your behalf. In general, third parties, including grandparents and other relatives, friends, co-parents, cousins and adult children are excluded from the settlement conference. A party may request the court’s permission for another person, such as a colleague from a legal firm or another family member or friend, to attend a settlement conference. The moving party bears the onus of convincing the court why the exclusion should be lifted.
For most families running through the family law process, including those with modest incomes and without large amounts of assets, a judge would only grant permission for a close relative, such as a parent, to attend the settlement conference.
How a Settlement Conference Works
The most common circumstance a settlement conference occurs is either the Judge, Judicial Hearing Officer or the Support Magistrate wants one or one of the parties feels it is necessary to move the case along. A settlement conference can be scheduled anytime before the judge has issued a decision after a hearing. A settlement conference may also be scheduled after a case has been litigated through a trial and the Judge has reserved decision. The parties may indicate their interest in a settlement conference to the Court at any time and the Court will schedule same.
Once a Judge determines that a settlement conference would be helpful to bring both parties together to settle all or some issues, the case will be put on a settlement conference calendar. The Court will send out a notice to both parties and their attorneys indicating the date and time for the conference and that it is required they attend. If a party does not attend the settlement conference and the other does both parties may waive the appearance of the party who did not attend for that appearance only. Otherwise a warrant to show cause would be needed to have the party who failed to attend show up.
Often the case will be ordered to be put on a settlement conference calendar on the same day as a temporary hearing or trial date. When this occurs the settlement conference will take place prior to the hearing. Thus, if the issues are resolved the case can be concluded that same day.
If a demand for a jury trial has been made, the case will not proceed to a settlement conference. If a jury trial is subsequently requested and pending, the same situation will occur.
Prior to the settlement conference the lawyers and the parties will usually have exchanged documents and the client will be given an outline of what to expect at the settlement conference. If either party is unrepresented, the Court will speak with them about the process of a settlement conference prior to the settlement conference. During a settlement conference, the judge will try to get each party to understand the strengths and weaknesses of each party’s position. There can be discussion of what a probable decision the Court would be if the case went to trial, what has happened in the past in similar cases and what the parties can expect in terms of potential decisions of the Judge. The Judge will also be able to have a candid talk with the litigants about whether the Custody evaluator, forensic evaluator or any other expert should speak with the Judge one on one without the parties and lawyers present.
Each case is a little bit different and often the Judge will control the flow of the settlement conference. Sometimes the Judge will talk to the lawyers outside of the presence of the parties, and at other times the Judge will want both the lawyers and the clients present. Often the Judge will speak to each litigant jointly and separately to point out the errors in there position and the reasonableness in the position of the other party. Often during the course of the conference, the Judge will ask the lawyers for their position and recommendations and to give the litigants the Lawyers position in terms of what they would be able to prove and what the Judge in the past had decided in similar cases involving similar circumstances.
At various times during the settlement conference, the Judge will ask the litigants and lawyers in an effort to settle the case to identify the issues that are either a priority to resolve for the litigants or neutral issues where everyone agrees and there is no conflict. Often during the course of the settlement conference a litigant would contemplate their position and then want an attorney to speak individually with the judge to talk about their concerns. The judge will often meet alone with the lawyer to learn about their position that is different from what the litigant believes the lawyer has presented. Sometimes the client convinces the attorney to change their position. Other times the attorney believes that the client may be possibly making a mistake. It is at points like these that the Judge will ask for a short break with both lawyers and consider telling them that the case will be adjourned if no settlement is reached at the end of a specific time period.
Advantages of a Settlement Conference
When parties participate in a settlement conference, they have the opportunity to gain clarity over legal issues which may be part of the litigation, as well as promote open and less contentious communications with the other party. If the parties are represented by attorneys, they may work on draft an agreement that can serve as the template for a Family Court order or a shared parenting plan. Furthermore, attending a conference prior to a trial helps identify and narrow issues which must be presented to the judge should the matter proceed to trial. A settlement conference saves a litigant time and money which would otherwise be spent preparing for trial. Further, since the overwhelming number of litigation matters are settled prior to trial, addressing settlement issues early in the litigation process helps give the parties an advantage over those litigants who wait until the trial date to make overtures to settle. Consider possible forms of dispute resolution which your attorney may be able to utilize to expedite the conclusion of your Family Court matter.
How to Prepare for a Settlement Conference
As with any appearance before the Court, parties want to come to Court with their best foot forward. What we typically advise our clients in advance of any settlement conference is to assume that all of the Judges have access to all of the prior Court appearances, Orders and records. It is best practice to prepare and assume that the Judge assigned to your case has reviewed all of the prior history and has a feel for the dynamics between you and your spouse/partner.
We strongly recommend gathering evidence that supports your case in advance of settlement conferences so that you can sell your case to your spouse and their attorney. This includes getting documents together that support any motions that you may have filed as well as any anticipated motions which may come as a surprise to your adversary. If you know that you are going to be making a motion for a downward modification of support, you could begin to gather documentation that supports that fact and bring it with you to the settlement conference.
For example, if you are making a written motion for a downward modification of child support, you should bring with you paystubs that reflect the more recent income you have been earning and your spouse’s gross income as well. If you know that Child Support Guidelines are going to be calculated, you may want to prepare the Guidelines in advance of your settlement conference as a comparison to each other and the last time they were done. Doing this shows that you have done the homework and have an understanding of your rights in the pending case.
You should also prepare a personal statement, which is your opportunity to give your version of the events that led your family to Court. That way, your attorney can review your story and lay it out for the Judge to see at a glance the information in your favor. This statement should recount not only the factual history of the events leading to litigation, but also the important factors that you may want to be addressed as a part of the case going forward. For example, if you are concerned about drug tests and your spouse’s parenting, this is an opportunity to bring that to the attention of the Court in a systematic fashion.
As a part of your preparation, the attorney may help the parties set forth a list of topics to be discussed at the conference and the issues that need to be resolved. We typically categorize the items into the following areas:
Once you have categorized the issues, you and your spouse will be in a much better position to sit down with the Judge and fully discuss the possibilities for settlement.
In advance of any settlement conference, we try to set forth the game plan for the month and year going forward. This includes a rough draft of a schedule between the parents if applicable. It is important that a tentative schedule be put in place before coming into Court. This way, when you go before a Judge, there is a framework to discuss possible alterations of the plan based on the Judge’s opinion and observations. The important thing to remember is that calling the Judge’s attention to the need for a final parenting plan early on can sometimes incentivize the parties to begin being flexible. After the Judge reminds the parties of the reason for having a parenting plan and the potential to have them appointed to the role of Parenting Coordinator (PC), the parents may be more likely to be willing to work with each other on their own. This theory of timing is important nevertheless, because if a family is settling their issues before Court, the Judge will remark how great this is for their children.
The point is that it is time well spent for any family proceeding through the system to ensure that the Judge knows the importance of an appropriate parenting plan and awareness of who the PC is going to be in that case.
Possible Results of a Settlement Conference
There are a variety of possible outcomes that could arise from your settlement conference. You could be at the point in your case where you and the other party are ready to put in the time and effort and hammer out some or all of the issues in your case through a settlement conference. Or perhaps after a few settlement conferences, you are finally able to make progress on a number of issues. The result is the same – you and the other party reach an agreement on their respective obligations, rights, and responsibilities.
An issue can come up that could delay or prevent the drafting of a Settlement Agreement. For example, if you and the other party reach an agreement on all issues at the settlement conference, the question then becomes how to document this agreement.
Under the Family Court rules for New York County, the parties are not required to draft a written agreement. Instead, Family Court Rule ยง 205.47 provides that the judge in Family Court must make a record of any agreement reached by the parties on the terms of consent and order .
Under this rule, the judge must put the agreement on the record in one of two ways:
If there is an agreement, but the terms are not recorded by the judge, then the attorneys can draft a Private Order that memorializes this agreement. This Private Order becomes binding upon the parties once they sign it.
In the event that the judge does not make a record of the agreement, or if the judge is supposed to make a record of the agreement, but there is an error during the recording or the record is erased, then the attorneys shall draft a Private Order that will become binding upon the parties once they sign it.
Of course, if the parties cannot reach an agreement on all issues, then they cannot have a full settlement conference that results in a written agreement. However, if the parties were able to resolve some of the issues through the settlement conference, then the court can schedule an interim order based on the issues that were resolved, and set a date for a future hearing on the unresolved issues.
Lawyers and Mediators at a Settlement Conference
The Role of Lawyers & Mediators – Counsel and a mediator may participate in a settlement conference conference, however, they are not required to do so. Also, it is important to know the difference between participating in a settlement conference with/without a mediator present. A lawyer is either present or not – however, if you have a mediator present, then that person plays an integral role in the process. More on that below. When you have a lawyer present, he/she will typically present your matter to the judge first. After that presentation, a dialogue may ensue between the judge and your counsel. As written above, in some cases, your counsel may not be present at the settlement conference. If counsel for both parties is not present, an event will be scheduled where you will go before the judge, without your counsel, and a resolution may be presented to you by the judge where you may either agree or not agree. If you agree, then the outcome is reduced to writing in the form of Consent Order which is then entered as an Order of the Court. If you do not agree, then the court may schedule another event (trial, mediation or some other process) to assist you in resolving the issues in your matter. For the purpose of this article and our further discussion in this blog, the focus is on matters where you retain the services of a mediator, or decide to proceed without a mediator also serving as a fact finder. A mediator may participate during the settlement conference in order to assist the judge in a number of ways. The mediator may be called on to provide information to the court regarding the issues at hand. The mediator may also provide the court with suggestions and/or guidance on how to best bring about a resolution of the issues in your case. Additionally, the mediator may also act as the fact finder by potentially meeting with the parties outside of the court room in order to advance the discussions. In order for this approach to work, the judge must be convinced that all communications between you and the mediator are confidential, so that there is full and frank disclosure of information to the mediator. If this information is not protected, then the mediator would not be able to serve in this dual role.
When the Settlement Conference Does Not Work
When settlement conferences fail and do not yield a resolution to the matter at hand, the parties have a number of options. First, the parties can agree to set another settlement conference once the case has had the opportunity to have discovery completed or near completion. When the parties believe that the facts have been fully developed, then they may believe they can negotiate a resolution without the need for a trial.
Alternatively, the court will schedule a trial date once the parties are no longer going to be engaging in settlement conferences. Whether the matter is referred to a QDRO (Qualified Domestic Relations Order) special master, special master, parental coordinator or parenting coordinator at the time of trial depends upon what the judge believes is in the best interests of the children and what would also be a reasonable way to resolve the contested issues.
On the day of new trials, the attorneys will meet – if they are not already – to confer and make final changes to the Final Pretrial Statements and to devise a plan for presenting witnesses and evidence . The judge will then call the matter; decide if it should be heard that day; and, if so, offer a bench trial (trial before a judge without a jury). If custody is contested, the judge will almost always order a custody evaluation and will not try the custody matters on the same day – there will also need to be time for the custody evaluator, guardian ad litem, attorney for the children, and other experts to testify as well.
The parties may no longer be without a temporary order governing issues such as who will have the children, where the children will live, and any child support pendente lite (support during the pendency of the divorce). Even with a temporary order, the parties will, however, need to be prepared for trial.
In short, settlement conferences are held with the goal of resolution, but when they are not successful, the court after a trial, or simply an evidentiary hearing, will render a decision. The parties may each seek counsel fees, with the party who is less able to pay commonly seeking counsel fees from the other party.