While a settlement conference and mediation are similar, they are different. For instance, in California, Evidence Code section 1115, et seq., governs mediation confidentiality, which is broadly construed and virtually absolute. With very limited exceptions, nothing said or produced during a mediation is admissible. Conversely, there is no such protection for a settlement conference. However, they both achieve the same goal – resolution of the case short of trial. That being said, should your approach to them be any different? The short answer is no. A settlement conference is a cost-saving opportunity to resolve the case and you should take advantage of it.
The challenge with a settlement conference is the fact that parties are on the eve of trial, have incurred substantial fees and costs during discovery, have solidified their respective positions, and are about to incur significant fees and costs for expert discovery and preparing for trial. Furthermore, you are not there voluntarily because you have been ordered by the Court to attend. Oftentimes, there is also a dispositive motion pending that will take place in short proximity of the settlement conference. At this stage of the litigation, the parties and counsel have their respective positions set and are ready for trial, making resolution at a settlement conference all the more challenging.
A mediation, on the other hand, is voluntary. Like settlement conferences, mediations are also scheduled in advance of a pending dispositive motion. Unlike settlement conferences, mediations also occur pre-litigation and at various times throughout litigation, often well in advance of a scheduled trial. Furthermore, the fact that the parties voluntarily attend a mediation indicates a willingness to resolve the case that you may not otherwise have in the settlement conference scenario.
Regardless, preparing for the settlement conference should be no different than preparing for a mediation. My recent blog post regarding preparing for a mediation is instructive for settlement conferences and can be found here.
Preparing for the Settlement Conference
Preparing for the settlement conference starts with the briefs. If there is a dispositive motion pending, provide the third-party neutral with the dispositive motion briefs and other evidence to support your position so the neutral understands both parties’ positions in advance of the settlement conference. Granted, this may depend on whether the Court has a page limitation for briefs. But, if you know in advance of the settlement conference who the neutral will be (and if you do not know, ask the clerk), send the information directly to the neutral. The neutral can use this information to narrow the issues in an effort to bring the parties together.
Next, set reasonable expectations for your client. Yes, you may get around any pending dispositive motion, but you are still going to trial. Conversely, you may win the motion, but may also face the realistic prospect of a protracted appellate process. Nonetheless, the risk is still present whether it is leaving the decision in the hands of a judge, jury, or an appellate panel. Regardless, there may be no resolution in sight for quite some time. Be open to the idea of resolving the case short of trial as it benefits all sides in the end. Negotiating a resolution everyone can live with is far better than the uncertainty of trial or an appeal.
Finally, believe in the process. A settlement conference is the last opportunity to resolve the case short of trial, eliminating unnecessary costs and the uncertainty associated with a trial. While neutrals who handle settlement conferences are generally not compensated for their time, they should nonetheless treat the settlement conference no differently than a mediation where the participants are paying. So, too should the parties and counsel.
The parties and counsel need to develop trust in the neutral handling the settlement conference. If there is no trust, the likelihood of resolution is low. Because settlement conferences are generally schedule for half-day sessions, the trust has to be developed early on. That means the neutral must be prepared and understand the issues in the case before the settlement conference. Thus, counsel should put in the time with their settlement conference briefs to educate the neutral on the main issues in the case and facts supporting the same. If not, you are missing a great opportunity and doing a disservice to your client by going through the motions of attending a mandatory settlement conference and preparing a lackluster brief.
Take advantage of court-ordered settlement conferences. Prepare for it like you would a mediation and attend the settlement conference with the attitude that the case can (and should) settle. A settlement conference is generally your last opportunity to resolve the case. Don’t waste it!
MDR provides mediation services to help you resolve your civil litigation matters. We take the time to review all information provided by counsel and conduct any necessary research to address issues in the case so that when you arrive for the mediation, we are ready to hit the ground running to successfully resolve your case. Contact us today to schedule your mediation.