Settlement conferences – a knight in shining armour?

Do you have clients who are locked in a bitter court battle over the arrangements for their children? Are you looking for a more constructive way forward, within the court system, without having to put your client through the stress of a fully contested trial? If so, help could be at hand.

Pilot: settlement conferences

There is currently a pilot being run by the Ministry of Justice to introduce settlement conferences into court cases where issues in relation to children are being determined, an approach which is well established in Canada and has been used there for many years. If the pilot is successful legislation is likely to be passed to introduce the option of a settlement conference into all court proceedings determining issues involving children.

The settlement conference allows the parties to the proceedings to speak informally to a judge to try and resolve issues without the need for a full trial. The judge tries to clarify information, facilitate discussion, analyse issues and promote understanding between the parties with a view to helping identify solutions.

As you will no doubt know, taking matters to trial can cause entrenched positions and fraught emotions. Our court system is adversarial; it is a very rational, process-oriented, structured approach. The difficulty is the issues being dealt with can be substantially emotional with there being a need to tackle the underlying conflict to really resolve matters effectively for our clients and their children.

The settlement conference has been introduced as a move towards a more problem-solving approach within the family courts. Settlement conferences try to help parties avoid an adversarial court room.

What can you expect from a settlement conference?

A protocol for basic principles has been drafted to provide consistency and fairness in procedure and expectations. The process is constantly being refined to reflect feedback and the experience of those involved but here is a summary:

• All parties have to freely consent to a settlement conference.
• The procedure reflects and embodies the current rules under the Family Proceedings Rules 2010.
• The judge who deals with the settlement conference will not hear the full trial if the case does not settle.
• They are listed by the court as a priority, thereby avoiding delay.
• Anything said by the parties and the judge during the settlement conference is without prejudice (if anything is disclosed by any party which could represent a risk to the welfare of a child, it will be shared with all the parties and with the trial judge if the case goes to trial).
• At all stages of the settlement conference a party is free to disengage.
• Parties are never seen without their legal representative, unless the parties consent. The legal representative is always free to speak or contribute in any way. The legal representative can object to any question canvassed by the judge. The legal representative can terminate the settlement conference on behalf of a client. The judge will never ask the legal representative their views as to merits – this would be to go behind legal professional privilege.
• At all times parties are told that they are under no pressure or duress to reach an agreement.
• Time should always be given at the end of the process to consult privately with lawyers and to reflect upon whether or not the parties want a resolution of some or all of the issues. If they want the resolution, the consent order is drawn up by their lawyers to reflect this. If not, that is fine and the case proceeds to a full trial.
• The judges dealing with the conferences will be particularly cautious about issues such as emotional pressure, vulnerability, learning disability or mental health issues. Where there are issues relating to a lack of capacity, settlement conferences are generally not appropriate.
• A settlement judge can be asked to provide an evaluation of the case during the hearing. They can provide this but must point out that another judge may disagree, as there are limitations on his or her opinion, for example because they do not hear all the evidence like the trial judge would or due to the wide range of judicial discretion that exists when determining matters.
• A settlement judge is mindful of the voice of the child, the wishes and feelings of the child and the need to ensure that the child’s needs and wishes are acknowledged.

It is hoped the opportunity of a more constructive, less confrontational approach to dealing with cases that have ended up in court will help parents to resolve matters in a way that is more likely to support the best interests of their children.

Other non-court based options

There are of course other non-court based dispute resolution options available including mediation, the collaborative process, and arbitration which should always be considered as a means of helping parents work out the arrangements for their children.

More information

If you have any queries or want to find out more about the pilot please contact your local family justice board or local designated family judge.

This article was first published on the Law Society’s Family Section on 16 February 2017