Settlement Conferences – creative innovation or miss?

Some 15 years ago, a system of mediation was introduced into Canada’s Family Law process. Here,  Andrew Brough from our Newcastle Office considers the introduction of a similar scheme into the public law process (England and Wales) on a voluntary basis: and asks, creative innovation or miss?

Purpose

The purpose of the introduction of Settlement Conferences into the public law legal process in England & Wales was to see whether or not disputed matters raised and not resolved at the Issues Resolution Hearing (hereafter referred to as IRH), and which were destined to be carried forward to a Final Hearing, could be settled in the interim. Should these prove to be effective, if all the issues could be agreed between the parties concerned, then the need for a Final Hearing could be avoided, or matters remaining unresolved would, along with the rest of the case, proceed to Final Hearing. A similar system has been conducted in Liverpool meanwhile, and it is now rolled out to other named areas of England & Wales.

Parameters

Parameters were established appertaining to the conduct of this system, namely:

1. The conferences are Judge led, and all parties, should they agree to partake in the conference, together with their respective legal representatives, would attend. It is stressed that this is a completely voluntary process – there is nothing mandatory about such a conference, nor is the process coercive;
2. Discussions within the conference are strictly confidential and without prejudice, and should all issues not be resolved, the case will proceed to a Final Hearing led by a different Judge. The Settlement Conference Judge will take no further part;
3. The Settlement Conference is less formal than the procedures undertaken at a Final Hearing, and although the purpose is to encourage settlement, there is no duress to do so;
4. Without agreement of all the parties to some, or all of the issues, no Order will be made. Should all the issues, or some of them, not be resolved, then the parties will come back to Court for the Final Hearing, or adjourned Settlement Conference where appropriate;
5. The parties concerned are free to speak with their legal representatives at any time, hence the importance of their representatives being in attendance;
6. During the pilot period, advocates are to be paid the equivalent rate of that of an adjourned IRH. A Final Hearing day rate will be paid for a successful Settlement Conference i.e. where the matter is finalised. In the case of a Settlement Conference where none of the issues, or only part of the issues are resolved, and the case progresses to a Final hearing, the unit rate will be given similar to an adjourned IRH.

Comment

It is to be expected that the introduction of this will attract both positive and negative feedback. It appears that to date, most comment has been negative, based on opinion rather than results. No doubt that, had the system been unsuitable then it would not have been retained for the length of time it has in Canada – or perhaps the Canadian legal profession have adopted an attitude of ‘live with it’.

However, the intention is there to try out, and the concerns expressed can be addressed and the faults, if such there are, remedied as they occur, particularly if they are approached with positivity and a determination to give Settlement Conferences a ‘fair trial’. The profession and the justice system generally has nothing to lose, and much to gain, particularly if lessons learned along the way are used to improve results.

In conclusion, the fact that it is a voluntary procedure, the agreement of the parties to attend, exhibits some modicum of intention to settle, even if only in part. The purpose of such conferences is more for the benefit of the parties concerned, than for the benefit of their legal representatives.

Andrew Brough is based at our Newcastle Office where he undertakes a mixed case load of publicly funded, civil inter partes and commercial matters.   Andrew has a BA (Hons) Accounting & Law degree from Newcastle University and completed his LPC at Northumbria University.  Contact Andrew direct on andrew.brough@johnmhayes.co.uk or call 0191 261 4666.

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