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Settlement Conference

What is a settlement conference?
Is my participation required?
Do I have to deal with the opposing party?
Do I need a lawyer?
How does a settlement conference work?
What authority does the settlement conference facilitator have?
Is the process confidential?
Where does the settlement conference take place?
How long does the process last?
Is a settlement guaranteed?
If the parties settle, will a court enforce the agreement?
What are the advantages of a settlement conference?
Fine, I'm convinced. What does it cost?

What Is a settlement conference?

A settlement conference is a meeting among disputing parties (or their representatives who have authority to settle) in which I, acting as a neutral third party, preside over the process. My role is to facilitate settlement or, in the absence of settlement, to issue a non-binding opinion.

A non-binding opinion provides a preview as to how the court might rule if the contested matter were to go to trial.

The purpose of the settlement conference is to settle a case before the hearing or trial. Settlement conferences are different from mediation in that settlement conferences typically have less participation of the parties and less consideration of nonlegal interests. Still, it is an alternative to going to court and asking a judge to make a decision for you

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Is my participation required?

No. Neither your participation nor the participation of your opposing party is required. It is a strictly voluntary process that can be used before, during, or after a case has been filed in court.

If you do not wish to participate, however, you must have a representative or agent (I recommend legal counsel) who has authority to act on your behalf.

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 Do I have to deal with the opposing party?

No. I highly encourage each party to attend the settlement conference and to fully participate. A party, however, may send a representative who has authority to settle the dispute. Generally, the representative is a party’s attorney, but it could be another person chosen by the party.

Although I attempt to create or enhance communication among the disputing parties so that we can meet together and find consensus, no one is ever required to meet with another party, except voluntarily.

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Do I need a lawyer?

No. If you or the opposing party has a lawyer, I will be happy to work with that lawyer. I will never, however, betray confidentiality. The fact that one party has a lawyer and the other does not have a lawyer has no affect on my evaluation or recommendations.

So that the balance of power remains intact, each party must be represented by an attorney or no party may be. If one party does not have legal representation, but the opposing party does have legal representation, I will not facilitate the settlement conference unless the non-represented party voluntarily and knowingly waives legal representation in writing.

Attorneys are encouraged to accompany their clients and to participate either as counselors or as advocates; and, unlike during a mediation session, attorneys may speak on behalf of their clients.

Nevertheless, because I do not offer legal advice, it is in your best interest to seek legal counsel.

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How does a settlement conference work?

As the facilitator, I take a completely neutral position.

At the start of the settlement conference – while all parties are present – I first listen to each party’s position. I may choose to ask questions directly to the parties. We will collaborate in defining the issues. This process is called a case presentation.

The case presentations are observed not only by me, but also by the party, representative, or attorney from each side who has the authority to settle the dispute.

At the end of the case presentations, the representatives and I attempt to settle the dispute. We may choose to caucus. At caucus, I conduct private meetings with the party or representative from each side of the controversy. This encourages each side to speak candidly with me about the interests and needs of that party that must be met in order for a settlement to occur. We may also investigate proposals for settlements in private. Caucus is a time to assess whether it makes sense to continue with the settlement conference as it is, change the focus, or perhaps terminate the process if it appears that any agreement is impossible.

If the representatives fail to settle the dispute, I will issue a written report identifying each side’s strengths and weaknesses and providing a non-binding opinion as to the likely outcome in court. When a decision is non-binding, my opinion is considered advisory and can be final only if accepted by all of the parties.

At no time do I offer legal advice.

After receiving my non-binding opinion, you may accept my opinion and enter a settlement agreement upon the terms that I opine, or you may want to further negotiate the terms of a settlement, or you may decide to proceed to trial.

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What authority does the settlement conference facilitator have?

I do not have the authority to impose a settlement. At no time do I offer legal advice. All I will do is evaluate the issues and make oral and written recommendations for settlement. I am authorized to end the process if I determine that further efforts would not contribute to a resolution of the dispute.

I do make every effort to resolve your controversy by:

✓ Providing a venue to explore underlying, often non-legal, issues that are critical to restoring harmony;

✓ Serving as a neutral third party to facilitate communication among multiple parties;

✓ Amicably navigating the maze of each individual’s position;

✓ Identifying the thorny issues resulting from conflicting and overlapping claims;

✓ Eliciting strength from the parties to seek solutions and to preserve relationships; an

✓ Providing parties with an opportunity to participate in finding a solution and to achieve maximum satisfaction with the outcome.

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Is the process confidential?

Yes. Whether or not the settlement conference is successful, it is always confidential. Anything that is told to me in confidence remains in confidence.

Because a settlement conference contemplates a full, complete, and candid discussion about the dispute, all parties must sign a confidentiality agreement that provides that what is said in the sessions cannot be used against the parties in any legal proceeding; as the facilitator, I cannot be subpoenaed to testify.

To see the confidentiality agreement, click here.

All settlement conference sessions are private. Only the parties or persons authorized by the parties may attend the settlement conference.

I do not permit any type of recording, nor shall there be a stenographic record of the settlement conference.

If a settlement is reached, however, and if a settlement agreement is signed, the settlement agreement itself is not confidential, and it can be enforced in court just like any other contract.

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Where does the settlement conference take place?

The settlement conference generally takes place in the conference room of the attorney of one of the parties. If it is court-ordered, the court often supplies a jury room for the settlement conference session. I will also meet at a party’s home or place of business, or at my place of business – wherever the parties are most comfortable.

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How long does the process last?

When I am first contacted, I coordinate a date, time, and place for the initial session.

Seven days before the settlement conference you and each party will provide me with a Confidential Settlement Conference Statement.

The initial settlement conference is scheduled to last one entire work day, usually from 9 a.m. to 5 p.m.

If a settlement is not reached, we re-schedule for a two-hour session that takes place about two weeks after the initial conference. In the meantime, I issue my written non-binding opinion. I have found that the passage of time, together with a review of my non-binding opinion, allows parties to gather their thoughts, put their priorities in order, and take a fresh approach to negotiating a solution.

Therefore, the entire process usually can be completed within six weeks.

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Is a settlement guaranteed?

No. The parties determine the success. A successful settlement conference requires a full, complete and candid discussion by all parties about the dispute. Each party must enter into the process in good faith, with an open mind, and with a willingness to consider a fair resolution of the dispute.

The parties must agree to remain at the settlement conference until we have completed the session, and each party must, of course, have appropriate settlement authority.

All participants must give me enough information about their needs and interests so that I am able to understand their position and their perspectives of the opposing party’s position.

Try not to give up on the process too early. Try to stay willing to explore all available options.

A settlement conference is worthwhile even when it does not result in a complete settlement. You will learn your opponent’s point of view, discover the strengths and weaknesses of your position, and narrow the issues in dispute. Even if you do not reach a complete settlement, you may reach a partial settlement.

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If the parties settle, will a court enforce the agreement?

Yes, but only if a settlement agreement is put into writing that is signed by all parties. If a party has a lawyer, then the lawyer must also sign the agreement.

Remember, the settlement agreement itself is not confidential and can be enforced in court, just like any other contract. If a dispute about the settlement agreement goes to court, the court will not be able to accept any evidence about the settlement conference or what was told to me because the process is confidential.

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What are the advantages of a settlement conference?

No party has more authority or more power than any other party.

No attorney is required. If you do have an attorney, that attorney is encouraged to attend in order to counsel you, give you legal advice, and represent your interests. If you do not have an attorney, you may choose to represent yourself or choose another person to represent you.

The process can begin immediately and can usually be completed within six weeks.

The process is private. No one other than the persons whom the parties involve in the dispute even know that a controversy exists.

Each party has an opportunity to express its strong emotions in a safe and private environment. (Vulgar or violent language is not permitted.)

The settlement conference process is less expensive, usually by a very significant amount, than litigation.

No pre-trial work is necessary. Neither party needs to expend time, energy, and money to complete the time-consuming and expensive discovery required when litigating a case in court. No one needs to write legal memoranda (although I do require a Confidential Settlement Conference Statement).

Your time and resources are focused on resolving the dispute instead of collecting evidence, deposing witnesses, drafting motions to support legal and factual positions, and attending pretrial court hearings.

The process is based on cooperation. I ask the parties to agree to exchange the important documents that support their position.

The settlement conference can be scheduled to take place whenever the parties are ready and the attorneys and the facilitator have the time available; scheduling is not dependent on the court’s calendar.

Settlement conference results are faster than court results. This enables the parties to more quickly put the dispute behind them and to get on with their lives.

A settlement conference is extremely less adversarial than litigation, there is a greater possibility that the opposing parties can rebuild their relationship.

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Fine, I'm convinced. What does it cost?

I charge $200 per hour plus out-of-pocket costs and $50 per hour for time spent traveling. I require a $4,000 deposit. Most parties agree to divide the costs equally between them.

To see my fee agreement, click here.

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