In previous articles, I wrote about what you could expect at early stages of the family law court process. The procedure is that after a case conference and possibly a motion, another pre-trial hearing called a settlement conference is scheduled. At times a settlement conference can be combined with a case conference, but often a settlement conference will be held separately and after all disclosure has been made. A matter cannot proceed to trial without having held a settlement conference.
What Can I Expect at My Settlement Conference?
A settlement conference is intended to promote resolution of the issues after all financial disclosure and reporting has been made to the parties and the court. With the benefit of the entire picture, a judge at a settlement conference is in a position to provide a judicial opinion that gives each party a solid assessment of the strengths and weaknesses of their claims.
If one person (a "party") has not made complete financial disclosure by the date of the settlement conference, the hearing will turn into a de facto case conference for a second time. A judge would order the person who did not disclose what was necessary to provide whatever items are outstanding by a certain date. The party that has not disclosed their entire picture as requested may also have to pay a percentage of the other party’s legal costs for the wasted conference time.
What You'll Need to Do with Your Lawyer
Part of my preparation with my clients is to get updates on their situation as I draft a document called a settlement conference brief. Important facts need to be gathered and perhaps a reasonable offer to settle should be discussed and made to the other side in time for them to consider it before the conference. The settlement conference brief is served on the other party and filed with the court.
Before the conference, the judge will review the briefs to understand the issues and the alleged facts to provide informed guidance at the hearing. The Family Law Rules also require your lawyer to file and serve a confirmation form.
The objectives of the settlement conference are to:
Confirming that all relevant disclosure has been made;
Explore the chances of settling the issues and narrowing down the number of issues; and
Get a judge’s opinion of how a motion judge or trial judge would decide an issue. (The words I like to hear are, "Well, Mr. Smith, if I were deciding this at trial, I would...")
The types of orders that a judge can make at a settlement conference are made with the consent of both parties. No binding decision will be made on a substantive matter in your case unless it's agreed to by both parties. If disclosure remains outstanding or has not yet been ordered, the court can make orders in that regard. If a party attends a settlement conference unprepared, the court may make a costs order in favour of the other party. If costs are awarded, it's usually a percentage of the total, often about 20-30%.
If a judge at a settlement conference gives his or her opinion on how an issue would be decided at trial, this would bar that particular judge from presiding over the trial if you reach that step. The reason behind this rule is that because of having candid, settlement discussions with each party at a conference, the judge will not be able to provide unbiased adjudication later at trial.
The Best Part
Arguably, the most valuable aspect of a settlement conference is the potential for receiving a candid judicial opinion. To maximize the chances that the judge will provide a thorough opinion on the issues, ensure that you work diligently with your lawyer to provide all the requested disclosure to the other party well in advance of the conference date. Failure to disclosure your economic and financial picture may result in no judicial opinion given and you may have to pay some of the other party’s costs.
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