In legal disputes where no compromise or potential resolution appears possible, the courts must become involved. However, this is a time-consuming approach to an already overburdened legal system. Many jurists have begun favoring the idea of compelling parties to sit down at a table and hash their issues out. Indeed, it has become a regulatory practice in many states, where cases cannot come to court unless parties have attempted alternative dispute resolution (ADR) processes first.
Why has this become a common practice, what does it intend to achieve, and is it effective?
ADR and what it means
ADR aims to keep cases out of court by solving them without the need for a judge, jury, or courtroom. One way this takes place is a mandatory settlement conference, which many judges and state legal systems require before matters can be heard in court. During such processes, a judge is present and may offer an informal opinion on disputed issues, give the parties talking points and advice on how to resolve issues, approve any agreements reached, and request more information should the case or part thereof still need to go to trial.
A mandatory settlement conference (MSC) is different from voluntary ADR as the word ‘mandatory’ implies. It might not yield a settlement on all issues, and the case may still proceed to trial. However, parties that go into an MSC with a positive attitude can resolve many problems without needing them to become matters of public record. MSCs are common in divorce cases as they give parties a chance to agree on a divorce settlement without having to call in witnesses to testify about messy matters like adultery.
The aim of an MSC
As mentioned before, an MSC aims to save the court’s valuable time. For example, too many other important cases can be heard instead of petty back and forth arguments between divorcing couples.
In addition to saving time, an MSC can save parties to a dispute a lot of money. Attorneys’ fees can become exorbitant when many court appearances are required to resolve a matter. While attorneys must be present during an MSC, it is less formal and likely to take less time to complete. There is no need for convoluted legal arguments during an MSC that could lead to adjournments, postponements, and delays.
Advantages of an MSC
As mentioned before, the advantages of an MSC are three-fold. First, it saves the court’s time. Second, an MSC saves clients on attorney’s fees. Third, these conferences do not require every minute detail of a case being heard in open court.
A final advantage is that MSCs are resolved far sooner than cases that go to trial. Therefore, if parties have a case they want to get over and done without delay, an MSC could save them time. If the other party wants matters resolved quickly, take advantage of this by pressing for an MSC and making additional demands. They might acquiesce in their rush to end the conflict. A classic example of this would be a divorce where one spouse wants to hurry things along to remarry. The other spouse could use an MSC to potentially get more out of the divorce agreement than they initially thought they could.
To take advantage of an MSC and the opportunities it presents, attorneys prepare themselves and ensure that their clients understand what to expect. Before an MSC, lawyers for each party will communicate in-person, telephonically, or via email. Each has a list of outstanding issues that the MSC aims to settle. They share their lists so that each side can prepare adequately. Wherever possible, attorneys try and iron out some matters ahead of an MSC.
When an attorney goes into an MSC, they have a detailed list of what issues need to be resolved. Each point is accompanied by a reason for it remaining unresolved and their client’s proposed resolution. For example, the list could include child support that parties could not agree on. An attorney has a figure their client wants, and this matter will be discussed during the MSC.
Both lawyers and their clients meet with a settlement judge at an appointed time and place. During this meeting, each point of contention is raised and discussed. Lawyers may confer with their clients about compromises they may be willing to make. Indeed, a settlement judge might ask to hear from parties themselves, giving each a chance to air their views.
A settlement judge cannot make any rulings or force parties to agree to any stipulations. Their job is to facilitate the process so that lawyers and their clients reach an agreement on each contested point. Where consensus is reached, a settlement judge helps attorneys draft an agreement. A settlement judge keeps encouraging parties to negotiate until no further movement is possible. Any remaining issues will then be addressed when the case goes to trial.