Settlement Conferences in Ontario are mandatory for any issues taken to Small Claims Court. On paper Settlement Conferences may seem like a good idea and I would say if all parties involved (including the Judge) governed themselves as they should then the outcome of a Settlement Conference would have its intended effect. That is to say that the burden of unnecessary trials on the Court system would be eliminated or at least minimized.
I definitely can’t speak to all Settlement Conferences that are held but I can speak to my own experience of a Settlement Conference, the first one I ever attended. Hopefully this will help others in what to expect although outcomes will vary depending on the Judge presiding over the Settlement Conference.
I was taken to Small Claims Court by a Company here in Ottawa. Both I and them attended the Settlement Conference self represented. Their claim was that I owed them thousands after resigning for cost of training. In the employment contract there was nothing stipulated regarding remuneration for training and therefore the issue was the contract.
At the beginning of the Settlement Conference we were graced by a monologue by the Judge which went on at length. For the words that came out of their mouth it was obvious they were narcissistic in nature. The Judge went on about how many cases they had worked on and how intelligent they were ad nauseam.
Before I describe what happened next I should define what should happen in a Settlement Conference. The whole point is that the Judge will mediate and both parties or their representatives must openly and frankly discuss the issues in dispute. This way the issues of the claims can be narrowed and hopefully resolved. The Judge will encourage the settlement of the claims and assist the parties in preparation for trial if need be. There should also be full disclosure between the parties of relevant facts and evidence. Settling doesn’t mean that the Plaintiff always wins, the settlement should be in favour of whomever the law deems just, based on the issue at hand.
What actually transpired in the Settlement Conference I attended didn’t come close to meeting any of the previously mentioned points. Once the Judge concluded their wonderful monologue they began to question the Plaintiff in such a manner as to make it appear that I should settle in their favour. This went on for roughly 15 minutes. At one point the Plaintiff attempted to speak directly to me but was cut off by the Judge and advised that everything goes through them. Having said that there was no direct discussion allowed between myself and the Plaintiff. It was obvious to me that by the questions the Judge was asking the Plaintiff and by the comments that were said that they hadn’t read my defence at all. Once the Judge started asking me questions which were very few it became clear that this Settlement Conference was going to be a waste of time.
Since the entire claim hinged on the employment contract once I stated that I had issues with the contract the Judge cut me off and pushed it to trial. The Judge didn’t even let me finish and then berated me for not settling and lectured me on how unpleasant court is with all it’s niceties and expenses etc. I was advised in so many words that the issue with the contract was going nowhere and I would most certainly lose in trial and how I should heed what the Judge was saying. There was no preparation for trial whatsoever, the evidence with all the facts wasn’t even reviewed.
If you read up on various lawyers websites regarding Settlement Conferences you will assuredly come across this tidbit of information: “The opinion of the Judge should be given serious consideration in determining whether to continue or resolve the claim.” Do NOT take this statement at face value. Granted if the Judge “mediating” the Settlement Conference has advised and provided an opinion based solely on the facts and evidence presented by both parties then I would agree that their opinion should be considered. In my case the only serious consideration I gave the Judge’s opinion was whether they should even be presiding over a Settlement Conference in the first place. A Judge that doesn’t even look at the facts or read the Defendants defence…classic.
And so the Plaintiff paid the fee and requested a trial date which was set for 6 months after the Settlement Conference. I was notified via mail by the Court about a month and a half in advance. The Plaintiff had taken the Judge’s opinion seriously and this was to be their downfall. Prior to the trial I served the Plaintiff with a motion to settle, my offer was that the claim be dismissed. They never responded and therefore my offer was not accepted. On the day of the trial the Plaintiff was approached twice with an offer to settle with the claim being dismissed. They were also advised as to why legally they couldn’t win and that they should settle. They were so confidant that they were going to win they rejected any offers to dismiss the claim.
The Plaintiff didn’t know much if anything regarding contract law so I can only surmise their steadfastness was based on what the Judge said in our Settlement Conference. Sadly for the Plaintiff walking into that courtroom for trial cost them thousands more. I won the trial and the Judge didn’t even need to hear closing statements from my side. I was awarded costs and I actually made money off this whole debacle.
So this all goes back to the Settlement Conference where realistically had the Judge actually mediated the issue at hand this would have been dismissed saving the Plaintiff thousands. Instead the Judge’s advice was a disservice to both parties providing the Plaintiff with false confidence and belittling me. Thankfully I’m not a complete pushover.
Unless you have friends who are lawyers you probably won’t hear much if anything at all regarding how Settlement Conferences actually transpire. Even then a lot of lawyers might be reluctant to discuss how effective Settlement Conferences really are. However what I found out is that what happened to me is not uncommon at a Settlement Conference, especially when you’re self represented. Certain Judges will strong arm you into settling without looking at all the facts and evidence. In fact the Judge that “mediated” the Settlement Conference I attended is known in the legal community for taking a position on an issue quite quickly without all the facts.
The trick then is if you’re representing yourself how do you deal with such a Judge at a Settlement Conference. If the Judge is taking a strong position against you and you want to get them to listen to what you have to say without cutting you off you’ll need to take an indirect approach. In other words you’ll need to “lead” the Judge to what they should already be aware of. In my case if I had spoken to how I’d be happy to settle and to do so I would just need to have the Plaintiff point out a couple of items in the contract then I might have had more success at getting the claim eventually dismissed at the Settlement Conference. Obviously it shouldn’t be necessary to play games just to get the Judge to listen to you but sadly it would appear to be necessary in some cases. If you don’t at least provide the appearance of wanting to settle regardless of in who’s favour you’ll most likely get shut down by the Judge.
I could only hope that what transpired at my Settlement Conference was an isolated incident and that it’s not par for the course however I somehow doubt that. Don’t assume that the Judge at your Settlement Conference has clearly read over all the facts and evidence. Be prepared to pleasantly and politely educate the Judge about the facts and evidence. Make it clear that you want to settle, that’s what the Judge wants to hear. You don’t have to elude to the fact yet that you want to settle in your favour even if you are legally entitled. I found being directly honest and blunt will get you nowhere.
To all those who will be self representing themselves, good luck at your Settlement Conference!