“I don’t want to go to court. I want to come back here.” This is a frequently expressed wish by parties who have accessed Legal Aid Ontario’s settlement conference services available in Sarnia and Chatham.
A settlement conference is a meeting between opposing sides of a legal matter at which the parties work toward a mutually agreeable resolution of their dispute without having to proceed to a trial.
Initially introduced under the Ontario Legal Aid Plan (OLAP) in the 1990’s LAO’s settlement conference program was rolled out in an effort to discourage needless trials and the endless litigation that can follow.
When the settlement conference program started at LAO in Sarnia, a backlog of cases pending in both the Superior Court and Ontario Court was addressed in short order. Within the first 6 months of operation, ninety per cent of the matters which used the settlement conference were settled. Based on word of mouth, our local Children’s Aid Society (CAS) requested that LAO enter into a pilot program to conduct conferences in child protection cases. LAO has just completed the second year of the successful program. Having also conducted settlement conferences in Chatham, I am optimistic that the family law lawyers will embrace this opportunity.
What are we to take from all of this? The judges are thrilled because many cases on their lists do not warrant a trial. The judicial settlement conferences have only limited time and create conflicts for the judges who cannot thereafter try the same matters. Their lists are being streamlined to a certain point and trial time is being devoted to those cases which have significant triable issues. The bar, who are essential to a successful settlement conference, are happy to have many of these often intractable matters resolved. Most importantly however, the parties for the most part seem pleased with the process. Why? They are trying to resolve matters for themselves and their children through an adversarial process, which can impede a collaborative result. In the settlement conference setting, which is without prejudice to their rights, I try to set a non-judgmental tone from the outset. I thank them for attending in an effort to resolve their issues and emphasize that it is by far in their best interests to settle the case as between themselves rather than leaving it to a third party who, although he or she is trying their best, will be obliged to make a decision for them. I explain that leaving it to a judge should be a matter of last resort. I do not put any unreasonable pressure on the parties and sometimes may conduct two or three settlement conferences in order for them to digest information and come to agreement. I always encourage and ensure that the parents have full opportunity to speak and create their own outcomes. Often they feel that they must speak truth to power. For example, they may not feel that their success with their methadone program is being fully recognized in their attempt to become responsible parents or they may express that the CAS worker is too unyielding or judgmental and they ask for another worker. These types of discussions, which would not see the light of day in a courtroom proceeding, help to empower parents to collaborate toward a positive result for themselves and their family.
The use of settlement conferences in the resolution of civil family law and child protection cases has substantially improved meaningful access to justice for the parties as they exercise a measure of control over the adversarial process rather than it controlling them. LAO offers settlement conferences in locations across Ontario.
Bob Murray is a lawyer and former LAO area director.