Settlement conference - Supreme Court (BC)

Last revised January 18, 2024

Settlement conferences have been around for some time but have found new life under Rule 9-2 of the new Supreme Court Civil Rules (B.C. Reg. 168/2009).

In the 2010 CLE paper "Settlement Conferences", Mr. Jack M. Webster, QC notes, "under the ‘old’ Rules one could organize a settlement conference either by consent or by order under the pretrial management Rule 35.  Those could be imposed as either a mini-trial or a settlement conference."

"The ‘new’ Rules do not allow the imposition of a mini trial any longer, but Rule 9-2 does allow the court, either by consent or by order, to compel the parties to attend a settlement conference."

In the 2008 CLE paper, "Settlement Conferences", Mr. Lewthwaite prepared a summary of the role of the settlement conferences under the old rules, which is helpful in answering a number of the basic questions concerning just what to expect.  For example:

What is it?

Judicial Settlement Conference is the utilization of a Supreme Court Judge to assist in settlement of a lawsuit. The format varies. It can be as straightforward as a settlement conference involving the parties and their lawyers. It can be formalized into a mini-trial or a judicial mediation. Often, the process as it progresses will evolve into variants of all three.

Where are they held and who attends?

They are held in a courtroom and are attended by the parties to a lawsuit and their lawyers. A Supreme Court judge presides over the proceedings. A court clerk is also present. The process is private and not open to the public.

How do you get one?

1. By agreement and with the assistance of the Trial Coordinator.
2. Upon application to a judge or associate judge or upon their own initiative. 

How do you prepare?

It is recommended that each side draft Briefs of Argument (similar to a Mediation Brief) outlining the facts of the case, the issues in dispute, and each party’s settlement positions. Additionally, the clients should be advised that they will frequently be addressed directly by the presiding judge such that their views and positions will be heard. The clients should be prepared for this. Beyond that, the process is relatively informal (as opposed to a trial). Robing is not required.

Mr. Justice Wallace provided another perspective in his 1986 CLE paper "Settlement Conference":

"Perhaps it is easier to define a settlement conference by saying what it is not – it is not a hearing to define the issues; nor to ensure appropriate preparation for trial; nor to expedite the trial process; nor to state an opinion of the probable result of the litigation as a settlement mechanism.  Its sole purpose is to effect a settlement.  Counsel and their clients come to the hearing with that sole objective.  …The role of the settlement conference judge has been described by our Chief Justice as one designed to assist the parties towards settlement without “twisting wrists”.

The format and procedure is that which will most effectively achieve the desired objective .  The one essential condition of a successful settlement conference is that the parties or representatives with full authority to settle the case are present or readily available.  Other than that the nature and variety of the methods used to resolve the litigation are limited only by the ingenuity of the judge and counsel. …"

The following, among other matters, are usually canvassed or considered at the settlement conference: the respective strength and weakness of each party’s case; the possibility of success of the respective parties on the various issues; the exposure of the defendants to the damages claimed; the financial resources available to the parties to meet a possible judgment; their insurance coverage; the benefits, both economic and from a business point of view, of the certainty of an immediate settlement structured to those parties’ individual requirements as to terms of payment, trade-offs, and adjustments, as contrasted with the detrimental aspects of a future uncertain result; the legal costs of the litigation to which each of the parties may be exposed in proceeding to trial and possible appeal; the offers and counter-offers made; the cost in time, money and inconvenience which the parties, their employees, and experts will incur during the course of litigation and trial; and the disruption, worry and concern of the litigants during the period of litigation.  These, and any other matters which demonstrate that it is in the interest of the parties to resolve the matter, will usually be frankly discussed at the settlement conference."

One of Justice Wallace's recommendations is to prepare and submit a brief.  David Grieg prepared a 2008 CLE paper, "A Brief on Briefs (or “Brief Briefs”)" to give lawyers tips on preparing briefs within the family law context. It contains a sample brief.    Although this is specific to family law, many of the general principles are the same and it may be helpful to see one option for what an example brief may look like.