settlement conference should be sched- uled to take place approximately a month before trial. That way there is still time to call off expert witness and the looming trial enhances the motivation to resolve the case. Mediation and settlement conferences
are similar, except that the facilitator takes a more active role in the settlement con- ference. Since I am technically not a mediator, but am more comfortable in the role of settlement facilitator, I would like to focus on preparation for and the con- duct of settlement conferences.
Preperation For a Settlement Conference
Prior to a settlement conference, the attorney should prepare a confidential settlement conference statement as well as prepare the client. The statement should concisely but fully explain the case. It is helpful both to emphasize the strengths as well as to note the weaknesses. Supporting documentation on contested issues should be included. Preparing the client is equally important. The client should be encouraged to keep an open mind, listen and be flexible. The client should also be emotionally prepared to make a decision and understand that, al- though the attorney and perhaps the settlement facilitator may give some ad- vice and guidance, the ultimate decision must be made by the client. It is also help- ful to explain the steps in the process and to make sure that the client has confidence in the settlement facilitator. Two final cau- tions in preparing for a settlement conference: do not go into the conference with the idea that it is a form of discovery or a step in the preparation for trial–it is not. And do not go into the settlement conference thinking that, after the con- ference, you will get a better settlement offer at the court house on the day of trial. If the settlement facilitator does his or her job properly, each party will go as far as it will ever go in attempting to reach a settle- ment. Everyone’s expectation should be that, if the case does not settle at the settle- ment conference, it will go to trial and all offers and demands are withdrawn. No attorney or insurance carrier wants to get a reputation for caving in on the eve of trial.
Conduct of a Settlement Conference
Clients know they must make the fi- nal decision about settlement so most clients want to and should participate in every phase of the settlement conference.
Summer 2003 Trial Reporter 21
The rare exception is where the attorney needs to make the settlement facilitator aware of something that should not be said in the client’s presence. Any discus- sion with the attorney outside the presence of the client should be handled discretely so as not to offend the client. The attorney’s opening statement is an
important part of a settlement conference. Clients see the settlement conference as a substitute for their trial so they want to be sure that the settlement facilitator and their opponents fully appreciate their case. There is also a cathartic benefit in hear- ing their cause championed in front of the adversary and an impartial observer. A good opening statement will also demon- strate to the opposition the attorney’s enthusiasm for and sincere belief in the strength of the case. Therefore, even though there has been a pre-conference written statement provided, and even though the settlement facilitator and ev- eryone else present understands the issues, it is still beneficial for both sides to make an opening statement highlighting their case.
After the opening statements the settle- ment facilitator usually will caucus with
each side separately. Generally, in an at- tempt to bring both sides to a mutually acceptable compromise, a settlement fa- cilitator will act as a “devil’s advocate” pointing out the risks, uncertainties, and expense involved in a trial and potential appeal. Sometimes the process of con- veying offers and demands back and forth may seem more like a tort auction than a tort action, but as awkward and artificial as the process seems, it works. The par- ties need to move gradually and have time to understand and accept each step toward the final mutually acceptable compromise. Once a mutually acceptable settlement
is achieved, it is important to get closure, to have all parties come together and make sure that everyone understands the settle- ment, agrees to the settlement, and is satisfied that the compromise reached is fair and reasonable. Some disputes must be resolved by trial, but a constantly growing percent- age of tort claims are being resolved by a mutually agreeable compromise brought about through the participation of the clients in a far less agonizing, less expen- sive, and less risky form of dispute resolution.
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