The Settlement Conference
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SMALL CLAIMS FORMS RELATED TO THIS SUBJECT
PURPOSE OF A SETTLEMENT CONFERENCE
The main purpose of a Settlement Conference is to encourage the parties to a lawsuit to settle the lawsuit and avoid the time, anxiety and cost of a trial.
But a Settlement Conference may also be used for other purposes. For example, a Settlement Conference can be used to learn about the evidence the other party will present at trial, and what documents they may use to try to prove their case.
A party can also try to gauge how effective the other party will be in giving evidence. And most importantly, since a Settlement Conference is conducted by a Judge, a party can often get an indication from the Judge about the likelihood of success of the claim.
WHO CONDUCTS SETTLEMENT CONFERENCES
A Provincial Court Judge will conduct the Settlement Conference.
However, if the parties do not settle the lawsuit, the Judge who conducted the Settlement Conference will not be the same Judge who conducts the trial.
WHEN ARE SETTLEMENT CONFERENCES REQUIRED?
A Settlement Conference will be held in every Small Claims lawsuit except a suit in which the only issue is the value of property damage which resulted from a motor vehicle accident.
The Settlement Conference will be held before trial. The Small Claims Registry will set a date and notify the parties of that date. If the lawsuit is for damages for personal injury, the Registry will not set a date until the Claimant has filed at the Registry:
- a Certificate of Readiness;
- a copy of all medical reports;
- a copy of all records of expenses and losses.
The Claimant must serve a copy of the Certificate of Readiness and the other documents on all parties to the lawsuit within 14 days of filing. For more information about serving documents see Factsheet 6. Small Claims Court Rule 7(9) requires the Certificate of Readiness to be filed within 6 months of the date of filing the Notice of Claim. A Claimant who is not ready to do so must apply to the Registrar to extend the time.
In some locations in British Columbia there may be six or more months between the Settlement Conference and the trial.
WHO MUST ATTEND
With one exception, all Claimant(s), Defendant(s), and Third Parties must attend the Settlement Conference. The exception is that a Defendant does not have to attend when the claim arose from a motor vehicle accident, and:
- the Defendant admits responsibility for the accident, but
- disputes the value of the claim; and
- the Defendant will be represented at the Settlement Conference by a person appointed by ICBC.
According to Rule 17(20) a party may be represented by a lawyer or an articled student.
ATTENDANCE BY TELEPHONE
Sometimes it is not convenient for a party to attend at the courthouse where the Settlement Conference is being held. A party may be ill, in hospital, or working in a different town. If a party can not be physically present, the party may make arrangements to participate in the Settlement Conference by telephone. Rule 17(16) allows this to happen. The procedure is to telephone the Small Claims Court Registry well in advance of the date and speak to the Small Claims Registrar. The Registrar will consider whether the reason for not attending in person is valid. If the Registrar agrees, the Registrar will make arrangements for one party to attend by telephone while the other party (usually) attends in person and is in the same room as the Judge.
WHAT MUST BE BROUGHT TO THE SETTLEMENT CONFERENCE
Each party must bring to the Settlement Conference all documents and reports they intend to use at trial.
WHAT HAPPENS IF A PARTY DOES NOT ATTEND?
If a Defendant does not attend a Settlement Conference, the Judge may order what the Claimant is seeking. For example, if a Claimant is seeking the return of the Claimant’s property which the Defendant refuses to return, the Judge could make an Order that the property be returned by a certain date.
If the claim is for a debt, the Judge could make an Order for the amount claimed.
If the Claimant does not appear, the Judge may make an Order dismissing the claim.
Orders made because the other party does not attend the Settlement Conference sometimes may be set aside if the party who did not attend brings an application to cancel the Order. For more information about cancelling an Order, see Factsheet 10.
WHAT HAPPENS AT A SETTLEMENT CONFERENCE
Provincial Court Judges who conduct Settlement Conferences have received training in mediation to help them structure the Settlement Conference to promote settlements.
But experience has shown that each Judge conducts Settlement Conferences differently. What follows is a sketch of what is likely to happen.
The parties and their representatives will gather in a room in the Courthouse (usually not a Courtroom). Often the Judge will set at the head of a table and the parties and their representatives will be on opposite sides of a table.
The Judge may begin by describing the purpose of the Settlement Conference; which is to help the parties reach a settlement of the lawsuit themselves rather than the Judge deciding the case at trial. Some Judges may then say that they want to hear from both sides about what the case is about. Some judges will insist that the parties themselves do the talking, rather than their lawyers (if any). Other judges are content to hear from the parties or their lawyers.
The Judge may ask the Claimant to explain what the case is about from the Claimant’s point of view. The Claimant, or the Claimant’s representative, will then tell the Judge about the Claimant’s case. The Claimant may produce documents in support of the claim including expert written opinions and estimates of the value of the claim.
The Defendant may then be asked to state the Defendant’s position. The Defendant will then describe her position and evidence that will support it.
Then the Judge may make some observations about the likelihood of success of the claim and, if appropriate, the amount of money that one party will be required to pay the other if a trial is held. This information can then be used by the parties to make a realistic assessment of their case and come to a mutually acceptable settlement.
The Judge may then ask the parties if there is room for compromise. Some Judges may allow the parties and their representatives to discuss their options privately and may allow them time inside or outside the Settlement Conference room to come to a settlement by themselves.
OPTIONS AT THE END OF THE SETTLEMENT CONFERENCE
If the parties reach a settlement, the Judge can immediately make an Order setting out the terms of settlement. For example, if the Claimant and Defendant agree that the Defendant will pay $500 to settle the Claimant’s claim, the Judge can make an Order requiring the Defendant to pay $500. That Order might allow payments over time. It might also allow the Claimant to take steps to recover the money if the Defendant doesn’t pay.
If the parties do not settle, the Judge can order a trial. In addition the Judge can order that a party allow the opposite party to inspect and copy documents. This can be very helpful, particularly if one of the parties has not brought important documents to the Settlement Conference.
A Judge could also require a party to allow the other party to inspect damage to property if that is part of the Claimant’s claim or Defendant’s counterclaim.
Finally, if the Judge decides that there is no reasonable claim or defence, or there are no issues that need to be decided at a trial, Rule 7(14) allows the Judge to decide the case and make an order in favour of the Claimant or Defendant.
Prepared by Glenn Gallins
Revised March 2008, links checked 2019
Funded by the PLE Program of the Legal Services Society