Q. I sued my former employer for wrongful dismissal and just got a “Notice of Settlement Conference”. It contains all this legalese I don’t understand. What is a Settlement Conference?
A settlement conference is a “without prejudice”, or “off the record” meeting between the parties in court. It is without prejudice in the sense that what is said at the conference is not evidence that can be used in court if the matter proceeds to a trial. The discussion at the settlement conference, however, will typically disclose the relevant facts and the evidence that will be presented at the trial.
The settlement conference is facilitated by a deputy judge (judges in Small Claims Court are referred to as “deputy judges”) who will not be the presiding deputy judge at trial. The reason for this is to encourage open and frank discussion between the parties who need not worry that the deputy judge will make an adverse finding against them for things said “off the record” at the settlement conference.
The settlement conference used to be called a “pre-trial”, and in fact many lawyers, paralegals and even deputy judges themselves still refer to the settlement conference as a pre-trial.
The purpose of the settlement conference is set out in the Rules of the Small Claims Court as follows:
(a) to resolve or narrow the issues in the action;
(b) to expedite the disposition of the action;
(c) to encourage settlement of the action;
(d) to assist the parties in effective preparation for trial; and
(e) to provide full disclosure between the parties of the relevant facts and evidence.
While the format of the meeting can be unpredictable, typically the Plaintiff will present his side of the story, listen to the Defendant present his, listen to the deputy judge’s opinion and perhaps negotiate a settlement.
In order to prepare for the settlement conference and ensure as smooth a conference as possible, the court requires that the parties exchange and file a Form 13A List of Proposed Witnesses no later than 14 days before the conference. This list, as the name of the form describes, sets out the names and contact information of anyone whom each party thinks he or she will need to call as a witness to testify in the event the lawsuit proceeds to trial.
For your wrongful dismissal lawsuit, an example would be a fellow employee who may have witnessed you being mistreated at the office. (Of course, if this employee is still working for the Defendant, it may make it very difficult for you to actually secure him as a witness to testify against his employer. You may need to issue a summons for his to come to trial, but a hostile witnesses can be very damaging to your case. A full discussion of hostile witnesses is a topic for a future column).
In addition to the witness list, each party is obligated to provide the other side with a copy of any document the party wishes to rely upon as evidence for trial that was not already attached to the Plaintiff’s Claim or Defence. (Personally, I do not really understand how this rule can ever be enforced because the Rules of the Small Claims Court allow for service of evidence up to 30 days before trial. Again, this is a topic for a future column.)
If the parties are fortunate enough to settle the litigation at the settlement conference, the deputy judge will typically have them enter into a Form 14D Terms of Settlement, setting out the money to be paid, when, etc. This way the settlement is committed to writing and filed with the court.
If the lawsuit is not resolved, then the deputy judge will fill out a court endorsement record stating that the matter has not settled and the matter is to proceed to trial. One of the parties, typically the Plaintiff, must then set the matter down for trial by paying the filing fee.
As always, the above is a general discussion, and settlement conferences can take many unanticipated twists and turns. For this reason, I always encourage parties to have representation if for nothing more than to simply ensure that they understand the process and what has transpired at the settlement conference.
The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal advisor.
Hi Bruce,
Thanks for the kind words. Some DJs are better than others. Recently a DJ went into a whole long discussion of a piece of legislation so it does happen. By in large unfortunately, I feel that the Small Claims Court has much to improve with its Settlement Conferences and it starts with the DJs. I find that many DJS will call out one party in front of another which only ticks off the “offending party” and makes the other side dig his heels. In other cases, DJs do not act strong enough to obtain settlement. Recently, a client of mine and the Defendant were $2,000 apart and all the DJ had to do was recommend “splitting the difference” (I couldn’t recommend it because the Defendant would not listen to me the same way he would a judge). Instead the DJ says “I guess it’s not settling”. There is lots of work that has to be done, and I intend on publishing more and more articles regarding Settlement Conferences. Thanks again for the feedback.