In many state courts, civil cases that meet certain threshold criteria are subject to the parties’ participation in a mandatory settlement conference. Although many attorneys and litigants view these settlement conferences as a box to check on the path to trial, with preparation and good faith participation, these settlement conferences offer the parties the opportunity to resolve the claims at issue.
- Thoughtfully prepare your Settlement Conference Memorandum. Your Settlement Conference Memorandum should articulate your claims or defenses as well as any potential issues or impediments to resolution. Taking time to outline the facts in conjunction with the legal theories of the claims or defenses provides the settlement conference judge, who has no working knowledge of your case, with a roadmap to assist the parties through meaningful discussions towards resolution. As with any other legal pleading, clear and concise language in a generally accepted mediation memorandum format will assist the judge to cut through the clutter and get to the issues quickly.
- Take the opportunity to communicate issues with the Settlement Conference Judge prior to the Settlement Conference. If you have delicate issues that are best shared with the judge prior to the Settlement Conference, it may be prudent to attempt to schedule a call with the judge prior to the Settlement Conference. Occasionally, attorneys may have client issues or delicate or emotional topics that are best addressed prior to the Settlement Conference. In these circumstances, scheduling a call with the judge to discuss such matters in an effort to address these items fairly and carefully, in a good faith effort towards resolution, may assist the ultimate outcome of the Settlement Conference.
- Prepare your client for the process of the Settlement Conference. Many litigants have never participated in a mediation or Settlement Conference and are unaware of the process and procedure. Although most neutrals will provide a brief statement explaining the process at the outset of the Settlement Conference, providing your client with the basics prior to participating will help eliminate unnecessary fear about the Settlement Conference and provide a basis of good faith participation.
- Stay open minded and get creative. Many cases that at first glance appear destined for trial are resolved by the parties getting creative with their agreed-to settlement terms. An apology, a payment plan, or another creative settlement term can often resolve a case that otherwise would not settle.
- Participate in good faith. Although attending in good faith is a requirement of the parties, there are degrees of what a party believes is in “good faith”. By candidly discussing any flaws or issues of the case with your client prior to the Settlement Conference, you can help eliminate the situation where a party, for the first time, hears these flaws or issues from the judge. Although it is often helpful for the parties to hear the good and the bad of their respective claims and positions from the judge during a Settlement Conference, if this is their first exposure to those uncomfortable discussions, it may thwart resolution efforts.
In conclusion, Settlement Conferences offer an inexpensive opportunity for parties to resolve their claims prior to trial. With some thoughtful preparation, you can maximize the opportunity for settlement.
