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MICHAEL BUTTERFIELD
Making Settlement Conferences Work for Unrepresented Litigants
A View from the Bench from Mr. Justice Crossin
T
he court process includes a number of Alternative Dispute Resolution (“ADR”) options. These include mandatory mediation and settlement conferences. While unrepresented litigants can be successful in mediation, they struggle more in settlement conferences (“Conferences”). Mr. Justice Crossin of the BC Supreme Court sums up his experiences: “Settlement conferences often prove fruitless where one or more of the parties is self-represented. Without the benefit of advice leading to the settlement conference; and without the ability to obtain advice during the process, the self-represented party finds herself or himself in a foreign land, wary and perhaps distrustful of the process; and reluctant to agree to anything, lest it prove to be ill advised. While this is somewhat predictable, it nevertheless inevitably proves to be a difficult hurdle to overcome in order to achieve any resolution.” The challenge is being met by lawyers providing unbundled, or limited scope retainors (“LSRs”). Some LSRs includes attendance at the Conference, while others coach the client on how to successfully participate in the Conferences. As Justice Crossin reflects “where counsel are present with clients that are genuinely open to the potential of coming to an agreement, it will often lead to a negotiated settlement, fairly and efficiently.” 18 BARTALK / DECEMBER 2021
Counsel representing the other litigant in a Conference may also face significant challenges: “An important element of settlement conferences is the court facilitating and framing ongoing discussions between the parties. Counsel, while willing and able to find a reasonable compromise, also recognise there is a significant power imbalance and consequently are sensitive to having candid discussions with selfrepresented parties. This obviously blunts constructive negotiations. In addition, judges find themselves in a place no less frustrating. In my experience, while the self-represented party is perhaps distrustful of the system generally, not so the judge. The self-represented person often views the judge as an ally. But this is the problem. No matter the extent to which the court makes clear that the role of the court in a settlement conference is that of a neutral mediator, almost inevitably the self-represented party looks to the judge throughout the process for protection, comfort, and legal advice. In this context, the settlement conference proves to be not terribly productive. On occasion, it will be apparent that regardless of financial circumstances, for one reason or another, often strategic, some persons prefer to pursue matters without the assistance
of a lawyer. The majority, however, are persons attempting to navigate a legal landscape without legal advice because access to our courts, armed with a lawyer, is simply financially out of reach for these persons. In my view, for those persons, something akin to an unbundled legal service, perhaps with an assigned lawyer providing discreet legal advice, could well prove to be a linchpin to a more meaningful settlement conference,” continues Justice Crossin. The ideal is for all parties to be represented within the court process. However, that is increasingly not the case. There is often a financial constraint, but in some cases it is strategic. The pitfall for LSR in preparing unrepresented litigants is that Conferences are fluid, and it is impossible to predict all issues which may arise. Justice Crossin suggests that “the ability of the self-represented person to access advice, by phone, during the conference, would be very constructive.” The LSR movement is about access to justice: “A settlement conference is not access to justice in circumstances where it is simply not a meaningful opportunity for one or more of the parties to participate in an informed way,” adds Justice Crossin. A well designed LSR can empower clients and enhance access to justice. Michael Butterfield is a Victoria, BC lawyer and certified mediator and arbitrator. Disclaimer: The views expressed by Mr. Justice Crossin are his own views and not the views of all other judges. Each judge will have their own experiences.
