How to Prepare for a Settlement Conference

Strategizing for the Settlement Conference

Decide what you want. Settlement is voluntary, which means no one can force you to accept a settlement you disagree with. However, before going to the conference, you need to know your goals. These will depend on the type of case. In a divorce dispute, for example, you’ll need to determine child custody, visitation, child support, and spousal maintenance (alimony). You should figure out what you want in all areas. In a personal injury dispute, you’ll need to decide how much money you are willing to pay or accept. In considering how much compensation you want, evaluate your damages, including lost wages and the cost of medical care, for example. As the injured person, you might want a lump sum or you might want a series of payments as part of a structured settlement. You may also want your legal costs covered. Note that in some contingency cases, lawyers may be less costly if you choose not to go to trial.

Analyze the strength of your case. If settlement fails, then you’ll probably have to go to court. You should analyze whether you’re likely to win at court. If so, then you can be aggressive at the settlement conference. If your case is weak, then you probably should seek resolution during the settlement conference. The strength of your case will depend on the law and the facts. You’ll have to do some research to find out the relevant law. For example, if you are in a child custody dispute, then check to see what factors the judge will consider when deciding custody. These are the “best interests of the child” factors and you can typically find them online.

Settle on your walkaway point. Your walkaway point is the absolute minimum you are willing to settle for. For example, in a personal injury lawsuit, you might only accept $50,000 for your injuries. If the other side can’t meet your minimum, then you walk away. Your walkaway point will depend on the strength of your lawsuit. If you have a very weak case, then you might be willing to settle for a small sum. However, when your evidence is strong, you might want to hold out for more.

Consult with an attorney, if necessary. An experienced attorney is a great asset. They can analyze the strength of your case and help you decide whether your goals are realistic. An attorney can also help you understand what will likely happen during the settlement conference. Tell the attorney the background facts and then ask the attorney how the judge will likely rule. You can find an attorney by contacting your local or state bar association and asking for a referral. Call up the attorney and ask how much they charge for a consultation. If you are low income, then look for legal aid services or pro bono help. You can find legal aid at the Legal Services Corporation’s website: http://www.lsc.gov.

Completing Paperwork

Find out who will run the settlement conference. A court-ordered settlement conference will be run by a neutral third party. This third party can be a mediator, lawyer, or judge. You should find out if someone will be running the settlement conference. A mediator’s job is to guide the discussion and to get the two sides listening to each other. Even if a judge runs the conference, realize that they will not be deciding anything during it. Whoever runs the conference should send you a list of rules or procedures. Read these carefully and comply with all rules. This article can only summarize settlement conferences generally, but you always must follow any specific rules given to you.

Summarize the dispute. You might need to describe the dispute to the mediator. In some courts, you have to write a “brief” and submit it to the mediator and the other side. Alternately, you might submit a letter. Even if not required, this exercise will help clarify the dispute in your own mind. Include the following: Write down any prior negotiations. Have you talked with the other side to hash out your disagreement? If so, have you reached an agreement on any issues? What are the remaining areas of disagreement? Identify who you think is at fault. If you were in a car accident, you should explain why the other party is responsible. Support your case with evidence of your injuries and the damage to your property. This can include photo, video, or other witness testimony. Explain your ideal resolution. What do you want?

Complete required forms. You may be given forms to fill out before your settlement conference can take place. Complete all forms and retain a copy for your records. You may have to file them with the court and send a copy to the other side. In a divorce or child custody case, you’ll have to fill out detailed financial forms. These forms can request a lot of information, so don’t wait until the last minute to complete them. Also make sure you have received a copy of the other side’s paperwork. This will help you plan for the settlement conference.

Gather your evidence. The judge or mediator might request to see any evidence you have in the case. You should gather your evidence and put it in some kind of order for the judge to look at. If you filed a personal injury lawsuit, then you can take medical records, medical bills, and a copy of the police report. You should also include any relevant photos, affidavits, and communications with your insurance company. You will have to provide copies to the other side, so make sure to pull everything together early and follow the judge's instructions.

Seal or redact confidential information. Court records are generally public, so you’ll need to request that sensitive personal information be sealed or redacted, edited to remain confidential. Request the forms from the court or mediator and fill them out. For example, you might want to seal or redact the following: W-2 or other employment forms tax returns paystubs Social Security Numbers credit card statements bank and other financial statements check registers other financial information

Draft a settlement agreement, if necessary. Some courts will request that you have a settlement agreement already drafted when you go to conference. This can speed up drafting the final agreement you sign. Type up a draft and save it to a flash drive or your computer. Don’t take only a paper copy. It will be easier to revise a digital version. You can find sample settlement agreements online. Alternately, you could ask a lawyer for a sample copy. Settlement agreements differ depending on the dispute. A marital separation agreement is different from a personal injury settlement. Find a sample relevant to your dispute. Even if your court doesn’t require you to bring a draft version, it’s still a good idea to look at one before going into the conference. Analyze what issues are included in the typical settlement agreement.

Tell all parties about the conference. If you have an insurance claims adjuster working on your case, then tell them about the conference. They need to participate. If a lawyer will represent a party, then the lawyer must have complete authority to settle the case on the client’s behalf. Corporations or other businesses must be represented by someone who can settle the matter for the business. If a necessary party can’t attend in person, check if they can attend by telephone. Some courts might allow this.

Participating in the Settlement Conference

Arrive early. Settlement conferences can be held at the courthouse or in a lawyer’s office. If you’ve never been to the location before, plan enough time to find parking. You might also have to go through security. Plan on arriving at least 15 minutes early. Turn off your cell phones and other electronic devices before going into the settlement conference. You don’t want to be interrupted. If you can’t make the settlement conference, then call ahead as soon as possible. Reschedule for a date and time you know you can make.

Speak honestly. Settlement conferences often begin with each side making a presentation about how they see the case. Generally, any statement you make in a settlement conference cannot be used against you later in court. For example, if you offer to pay someone $50,000 for their injuries, they can’t use this statement later to show that you are accepting responsibility for their injuries. If you don’t agree to the confidentiality rules, then you might not be able to go ahead with the settlement conference.

Listen actively. You can’t resolve the dispute if the other side thinks you don’t care what they are saying. Instead, you should actively listen as they talk. Remember the following tips: Sit with an open body style. This means sitting facing the other person. Don’t cross your arms or legs, and don’t angle your body away from them. Make eye contact. This encourages the other person to talk honestly because it shows you are listening. Nod occasionally to show that you are hearing what they are saying. Summarize what the other person has said. This is particularly important when you disagree. For example, you can say, “I understand you want full custody because I’m moving 50 miles away, but I still think we should split custody 50-50. I can drive Jimmy and Sarah to school in the morning, so living apart won’t be a problem.”

Caucus with the mediator. The mediator might ask you and the other party to go into separate rooms. The mediator will then shuttle back and forth between rooms. This is called “caucusing,” and the mediator might use it if you reach an impasse. Caucusing allows you to speak honestly to the mediator without the other side hearing what you say. You can also ask the mediator for their honest assessment of how they think the settlement conference is going.

Take notes. Even if you don’t reach a settlement, attending the conference is helpful. For example, the other side will probably preview what they will argue if you go to trial. Take notes so you can review them later. In a child custody dispute, for example, the other side might tip you off that they will argue you are unfit to parent. Also listen to the mediator or judge. They might offer their opinion of the case. You should take what they say seriously, since they are approaching the dispute neutrally like a trial judge will.

Resolve as many issues as you can. You might not be able to agree on everything. However, the more you can agree on, then the less a judge must decide at trial. For example, in a divorce dispute, you might agree on spousal maintenance and the division of property but not child custody. Settlement involves “give and take.” Even if you think you have a strong case, you might want to give up a little just to avoid court. It’s important to know that you can sign a settlement agreement for any issues you do resolve. In effect, you can partially settle, and the judge often likes to see this effort on your part as well. Make sure to show the draft agreement to a lawyer before signing. You can also agree to schedule another settlement conference. One conference might not be enough to resolve all issues. If you think you are making good progress, then schedule another session.