Settlement conferences are generally offered in all of the Supreme Court (Family Divisions) and Family Courts.
A settlement conference is an option for parties who want to negotiate a resolution and make their own decisions about their situation. Its purpose is to determine if the parties can reach agreements on the issues themselves with the help of a judge. It is a voluntary process, which means that the parties must each agree to participate. This is because a settlement conference requires the active participation of all parties to find solutions that are acceptable to everyone involved. Once the parties agree to go to a settlement conference, there are certain documents they must file (the court will tell you what needs to be filed).
Settlement conferences are usually held in a board room, not a court room, with all of the parties, their lawyers (if applicable) and a judge. The judge participating in your settlement conference will not be the judge who will hear your final hearing, if your matter ends up going to court. Settlement conferences are not recorded (they are ‘off the record’) – this means that if you do not reach an agreement on any or all of the issues in your conference, the discussions and negotiations that took place cannot be brought up or used against you in your court hearing, and the judge presiding over your hearing will not know what was discussed at the conference. If you do reach an agreement on any of the issues, only what was agreed to will be recorded (‘read into the record’).
What a settlement conference does
What a settlement conference does not do
You hear the proposals and views of the other party or parties and ask questions to be clear in your understanding of the issues
You cannot expect the judge to give legal opinions or make rulings in favour of or against a party or parties
Your proposals and views are heard by the other party or parties and clarified by you
You cannot prove your case and the judge will not make orders, unless all parties agree
You work with the other party or parties with the assistance of a judge to look for solutions that are acceptable to everyone
You cannot pre-test your positions and arguments for trial
You have your proposals at the settlement conference kept confidential and your settlement conference brief is sealed
You cannot have any of the statements or financial documents required by the Court Rules sealed without a separate application
There is no court fee for a settlement conference, and they may be a good opportunity for you and the other party to sort out your issues without having to go to a formal hearing. If you do not reach an agreement during your conference, the judge involved may still comment on the strengths and weaknesses of each party’s proposal, and may give an opinion on the likely outcome if the matter goes to a hearing.
Talk to a lawyer to see if a settlement conference is a good option for your case.
- Make a request
- If you are in a court-based ADR ('conciliation') meeting, you can ask the court officer/conciliator about going to a settlement conference. You can also make this request during a pre-trial conference, like a Date Assignment Conference. Otherwise, you must write a letter of request to the court.
- Agree to participate
All of the parties and their lawyers, if applicable, must agree to participate in the settlement conference before it can be scheduled. If you are in a court-based ADR meeting, the court officer/conciliator will check this by speaking to everyone involved. If you are in court making this request, the judge will ask the lawyers, or the parties if there are no lawyers, whether or not they agree to go to a settlement conference.
Otherwise, the agreements to participate must be confirmed in writing by each participant.
- It is often helpful to speak to the other party about going to a settlement conference before getting to court, if possible.
- File all disclosure (documents)
- All of the documents required by the courts’ rules must be filed by all of the parties before the case can be scheduled for a settlement conference. The court will tell you which documents are required.
- File a Settlement Conference Brief (also called a ‘Statement of Proposals’)
- Write a statement, in letter form, that sets out your proposals for settlement. Be prepared to negotiate ways to resolve this matter and to think about those things ahead of time.
- You should be prepared to state what ways, if any, you may be willing to resolve this matter aside from what you have indicated in the conciliation process or in other documents you have filed with the court. This brief should say, in detail, what you want the court to order. It should also give reasons and facts supporting why you want the court to do so.
- The Applicant or Petitioner – the person who started the court proceedings - must file their Brief (Statement) with the court at least ten (10) business days (do not count weekends or other days when the court is closed) before the settlement conference, and send a copy to the other party at the same time.
- The Respondent – the person responding to the court application - must file their Brief at least five (5) business days before the settlement conference, and provide a copy to the Applicant/Petitioner. The Settlement Conference Brief filed by the parties will be given to the judge presiding at the settlement conference so that he or she will have a better understanding of your position prior to the conference.
- There is no specific document for this brief – write it as a formal letter. It is preferable that the brief be typed. It should be single-sided (don’t write on both sides of the page) and neat.
Your brief should outline:
- what the issues are (for example, child custody and access, child support)
- what your position is on those issues (for example, what parenting arrangements you are looking to have put in place, how much child support)
- any facts that you are relying on to support your position
any case law you are relying on to support your position
- ‘case law’ means previously-decided cases, similar to yours, that support your position
A note about finding case law:
You may be able to do some of your own legal research for your case, but be sure to have a lawyer review your research to make sure that what you have is accurate, up-to-date, and applies to your situation. The law is constantly changing. For example, you may have found a case from 5 years ago that closely matches your situation and want to rely on it for your settlement conference brief, but there may have been other cases since then that decided something differently.
There are some online resources that may be helpful to you in looking up laws and cases, like the Canadian Legal Information Institute. Be very careful of what you find online – there is some good information out there, but a lot of bad or inaccurate information too. There may also be a library near you that can help you with some legal research.
The settlement conference will be cancelled. The judge may make an order for costs against the person who failed to file their Settlement Conference Brief by the filing date.
The reasons why these things happen are:
- if a party is not prepared to file the required settlement conference brief on time, then that party is not ready to negotiate
- the court is only prepared to offer time on its schedule for settlement conferencing in cases where all of the parties are ready to negotiate
- the other party or parties in a case who have filed their settlement conference brief have spent time and money to do so, and the court will consider a claim for costs
- if a party fails to attend the settlement conference without a good reason, court time is wasted and the other party or parties have prepared and attended and spent time and money to do so, and the court will consider a claim for costs.
This means that you should only agree to go to a settlement conference if you are certain that you want to negotiate, you will file your Settlement Conference Brief on time, and you will attend the conference.
You should bring the following things to the settlement conference:
- The Settlement Conference Brief filed by each of the parties, including your own, along with any notes you have made (which you can prepare for your own reference and you do not have to give to anyone else)
- Copies of all of the documents that you have filed or received from the other parties in relation to your case so that you have them to refer to during the conference
- A pen and paper so that you can write down the comments and directions from the judge.
In some cases, agreements cannot be reached at the settlement conference. Some of the conference time can be used by the judge (if the judge decides that this is the proper time) to prepare both sides for presenting evidence and arguments at the trial.
You don’t have to resolve all of the issues at the settlement conference for it to be beneficial. For example, if you have 6 issues to address, and you resolve only 2 of those issues during the settlement conference, those 2 issues can still be read into the record. That means that you are done with those 2 issues, and only the remaining 4 issues now have to be dealt with in court. This helps to save time and money, as you don’t have to prepare to deal with as many issues in court, and a shorter amount of court time has to be booked.
If some or all of the issues do not get resolved, you may also be required to deal with other issues, so come prepared by also bringing the following information:
- Prepare a list of witnesses that you expect to call at the hearing or trial. Have this list ready to give to the presiding judge and to the other party at the time of the settlement conference.
- Prepare a short statement of what you believe these witnesses will say. The judge hearing the matter will give you directions as to when the witnesses’ affidavits (which contain sworn statements of their evidence) will have to be filed. Have this ready to give to the presiding judge and to the other party at the time of the settlement conference, if the matter is not resolved at that time.
For more information about witnesses, click here.
- Be prepared to tell the court when you will be able to file any required affidavits. An affidavit is a sworn statement (meaning you give your oath or affirmation to a Commissioner before signing it) setting out in detail the facts that the person swearing it knows to be true.
For more information about affidavits, click here.
- Prepare a list of the specific issues you have in relation to this case which have not been addressed, or which have not been addressed to your satisfaction, so that you can ask the judge about them. It is often difficult for people to remember to do this when in the courtroom.
- The judge will also give you directions regarding the filing of further documents, how much time is needed for the hearing or trial, and any other procedural issues you may raise, if the matter is not settled at that time.