The practice of law today is very different. It’s different for us lawyers, and also for our clients. Over the years we have seen big changes in how judicial settlement proceeds. Once upon a time, the framework that exists today to encourage settlement did not exist. In today’s world, clients expect their lawyers to be problem solvers, not problem creators.
The way it was
Having spent most of the past 44 years in the area of law best described as litigation, I have seen a lot of changes. Most colleagues of my vintage will agree that the majority of trials that took place in the 70’s and 80’s took place over a day or two. There were some marathon trials back then. For example, a trial involving a First Nations Treaty, or a complex criminal matter, but a typical long civil trial back then was five days.
Today, even with all the attempts to fast-track litigation and reduce the time for a trial, most short trials are set for five days. In recent years, I have been involved in many five and six week trials for claims similar to trials back in the 70’s that took between two and five days.
When I completed my articles in May 1972, my principal, who was a personal injury trial lawyer, had no fewer than 26 trials set to proceed in that month. Many of them were one and two day trials and obviously more than one were set for the same day, in anticipation that one or more might settle. At that time, setting a case for trial was a way to encourage settlement.
Negotiations with insurance representatives would often involve last minute attempts by the insurance adjuster showing up at the office on the eve of trial to discuss settlement, and more often than not, the discussion would end up as a shouting match.
I am sure the percentage of cases that were initiated back in the 70’s that actually went to trial were much higher than today. One reason is the system did not lend itself to early settlement and the court structure did not actually encourage it. Out of that type of structure were calls for cost effective Access to Justice and the development of alternate dispute resolution processes to promote settlement outside of court.
The way it is
Today, and fortunately for the past number of years, attempts have been made by members of the bar, legislators and the judiciary to find some sensible way to resolve litigation without the necessity of trials, whether short or long, all to the benefit of the parties involved. No doubt, some cases cannot be settled and they need to proceed to trial for a variety of reasons, but for the most part everything can be resolved given the mind set and the motivation of the participants.
It is very encouraging to know that in the case of Provincial Court (Small Claims), a settlement conference is now mandatory in most cases. The parties, with or without counsel, meet together with a judge of the court and attempts are made to encourage the parties to find some common ground where a settlement can occur. In some jurisdictions, pilot projects have been put in place to require mandatory mediation.
In matters proceeding through our Supreme Court of B.C., the rules of court now provide for mediations, (in some instances mandatory), and Judicial Settlement Conferences, either voluntary or ordered.
Judicial Settlement Conferences
Judicial Settlement Conferences in personal injury matters are where the parties and their counsel all appear in front of a Supreme Court Judge and provide a copy of the relevant medical reports that would otherwise be relied upon at trial. They provide a brief presentation as to what the court should award the claimant, and why.
The justice will often retire to his or her chambers to review the materials and provide a suggestion to counsel and the parties as to what he or she as an individual sitting and hearing the case would order. The comments of the justice are non-binding and simply a guide as to what the court might do if the matter were to proceed to a full hearing. If a Judicial Settlement Conference is set, the litigants are required to attend and hear firsthand, the comments of the court.
Back in the 70’s there was no such process to provide parties the opportunity to get a preliminary sense of what a judge sitting alone may decide. Even though the parties themselves may have wanted the dispute to be resolved short of a full trial, there was no framework to encourage settlement, like there is today.
Sourcing a solution
Today, with Case Management Conferences and Trial Management Conferences required to take place, judges can take the opportunity to inquire with the parties, or their counsel, what negotiations (if any) have taken place and ask if the court can do anything to assist.
Mediations, conducted by private mediators, free up the Provincial Court Judges or Supreme Court Judges to do other matters. Such as proceeding with those other cases that need to go to trial, while at the same time ensuring that all attempts to resolve conflicts are being carried out.
Today, clients want lawyers to be problem solvers, not problem creators. We are increasingly called upon to find ways to source a solution that is cost effective and permanent, if possible. In many cases that solution is a resolution of the claim without the necessity of a trial.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.