Top 10 tips for an effective settlement conference

There are few more effective techniques when negotiating the resolution of a case than to hear directly from the decision-maker how he or she might rule on a given issue. While there are few guidelines for conducting settlement conferences with the judge in civil cases, there are ways to make a settlement conference more effective. Often, informal settlement conferences are held with attorneys and the judge in chambers, perhaps with the parties present as well, especially if one party is not represented by an attorney. While there are provisions for settlement conferences in criminal cases, this article focuses only on civil cases, particularly in the area of family law. Make sure you are aware of your court’s local protocol on settlement conferences, if they are allowed, how they are conducted, and the potential consequences of utilizing this option.

1. Know when to have a settlement conference

A settlement conference with the court is best conducted after it has become clear that one or more issues are preventing the parties from coming to an agreement on their own. This means that it is usually more helpful to have a settlement conference closer to a contested hearing or trial. This can still be done before the parties incur substantial attorneys’ fees on case dispositive motions or temporary hearings, but after the attorneys know the issues that are likely to be in dispute. If possible, the settlement conference should not be held so late in the process that the parties are prepared (emotionally and financially) to take the case to trial regardless.

2. Discuss the process with your client

If settlement conferences are typical in your area of practice, consider letting clients know at one of your first meetings that this is an option, and what it entails. Follow up by letter or email to your client once you determine that a settlement conference is the next best step. Discuss whether the parties will be present at the settlement conference, where it will be held, and whether it will be on or off the record. Inform your client, if you can, about the court’s protocol for allowing a substitution of judge after a settlement conference.

3. Confirm the agreement to conduct a settlement conference

To avoid potential problems later, confirm your client’s agreement to conduct a settlement conference while both parties and attorneys are present at a pretrial hearing. This confirmation on the record may help clarify everyone’s expectations ahead of the conference and could also give the judge insight into the issues that need to be addressed during the settlement conference. Additionally, this is a critical step if you are unaware of whether your particular judge allows settlement conferences or not.

4. Have a plan

While it may be tempting to discuss every possible issue in the case with the judge during a settlement conference, that may not be realistic considering the court’s availability and the stage of the case at the time. Focusing on particular issues will enable you to make the most efficient use of your time and the court’s. Additionally, if you can discuss the issues with opposing counsel ahead of time, you are less likely to be surprised and, consequently, you will be better prepared for the conference. You should also plan whether your client will be present at the courthouse while the settlement conference is conducted, even if he or she does not attend the settlement conference itself.

5. Know your case

Obviously, attorneys have many clients and may need to refer to a file for a specific piece of information about the case. That said, it is extremely helpful to have basic details written down on one page of paper (or screen) that you can refer to quickly and easily. A paralegal or legal assistant could assist in preparing a basic summary of the parties’ ages, employment, income, children, and the like, depending on what is relevant. Additionally, you should have a good idea of your client’s goals in any settlement. If you have not had detailed conversations about his or her expectations, you will be less likely to have a productive conversation.

6. Know the law

This probably goes without saying for any hearing; however, it is just as true for a settlement conference as it is for a substantive hearing. If there are relevant statutes or case law on point, bring copies with you so that you can accurately cite them to the court. Saying that you know that there has been a decision on a lesser known aspect of the law, but not having it with you to cite, is always less convincing.

7. Act courteously toward your fellow attorney

At its best, a settlement conference is a fantastic opportunity for the lawyers and the judge to talk informally about the most important aspects of the case. Usually, it is off the record and outside the presence of the clients, so there is no reason to put on a show. Be a zealous advocate, certainly, and make your points firmly, but always be civil. Do not interrupt opposing counsel and do not be overly critical of his or her presentation. Remember that the practice of law is difficult enough as it is, without personal attacks. Additionally, if you wish to show any documents to the judge, make sure to let opposing counsel know first. You would, no doubt, appreciate the same courtesy.

8. Act courteously toward the judge and courthouse staff

Similarly, be respectful of the opportunity to speak with opposing counsel and the judge in chambers. Remember that there is a difference between making an argument and being argumentative. Once you have made your presentation, focus on listening. You may learn something, and, regardless, you are unlikely to change anyone’s mind by being disrespectful. Additionally, treat courthouse staff with kindness, and do not overly distract them from their other responsibilities.

9. Take good notes

Key in on the both the arguments made by opposing counsel, as well as the suggestions from the judge. You may learn facts about the case that you did not know before (shockingly, some clients are not forthcoming about things they know could hurt their case), and you obviously want to keep track of any settlement ranges, calculations and relevant case law, for review later. Do not assume that you will remember the conversation perfectly after you talk to your client about it, think about other pressing cases, and then sleep on it. You won’t.

10. Know when to stop

Just as important as knowing the most effective time to have a settlement conference is the ability to know when the settlement conference should be over. Sometimes, the timing is dictated simply by availability. Other times, it can become clear that additional conversation is not going to move the negotiation forward. Certainly, if it has digressed into shouting, personal attacks, or if it has strayed widely from the current issues at hand, it is time to end the conference. Finally, once the judge has made recommendations, you are unlikely to get a different result short of putting on your evidence at trial.

In sum, prepare for a settlement conference in much the same way you would any other hearing: by working with your client, doing your research, and making an effective presentation. Be an advocate, but be mindful of the fact that attorneys (and judges for that matter) may not be as willing to conduct settlement conferences with you in the future if you cannot be civil. Make effective use of the conference by focusing on certain issues, listening and taking what you learned back to your client. Done right, a settlement conference with the court and opposing counsel is an excellent tool to assist with negotiations that appear to be deadlocked.