I had four settlement conferences last week, a record for me, and the culmination of two weeks of effort by my staff. One was before a retired judge, one with a lawyer the parties had hired, the third just the parties and their attorneys, and the final one supervised by a neutral lawyer at the courthouse. Two settled completely, one settled with a reservation that appears to be satisfied, and the last resulted in gathering information, feeling out each side's positions on important issues, and providing the parties with a wake up call about their positions. I consider the week a complete success.
These are expensive propositions: Even with just the two lawyers, we were billing at more than $750 an hour. With the retired judge, there were two expensive lawyers on one side, one on the other, and a combined hourly cost of about $1700, including the judge - it lasted about 5 hours, but overall made good progress in dealing with complicated legal and factual issues involving a great deal of money.
Each case but one was the result of the lawyers determining the best option for the parties, after considering the personalities, the issues, and their financial resources. In that fourth case, one side wouldn't communicate or cooperate, so we had little choice but use the court system to bring closure.
In North San Diego County [the Vista court], we have a long tradition in Family Law of having court-supervised settlement conferences in all cases. Historically, you couldn't get a trial without going through the process. An experienced lawyer supervised the process, and the results were pretty miraculous. About 97% of the cases settled. For many years, we couldn't get the judicial resources to handle our cases, so the experienced lawyers took matters into our own hands and devoted long hours to help their colleagues get their cases resolved.
Almost all of the Certified Specialists volunteered their time, when we could have been doing something more rewarding financially. One big advantage of the process was having a neutral, experienced trial lawyer look at the facts, and dispassionately make recommendations free of the emotional attachment to the clients or their legal positions. The best could size up how a case should settle pretty quickly, and use their expertise to convince the parties they were better off leaving their differences behind, and getting the matter over that day, rather than continuing to spend money fighting.
About the worst that ever happened [other than a few screaming matches] was that the lawyers and parties sat down and talked, sharing documents, for the first time - they saw the weaknesses in their positions, and figured out what was missing [like getting an appraisal for the house].
In North County, we volunteered our time because for decades we didn't have enough Family Law judges to try our cases - we couldn't get to trial within a reasonable period of time, so we sought other solutions. We would even volunteer as trial judges until the court abolished that practice years ago. For long cases [those over 3 hours of trial time], the Main Branch in San Diego adopted the policy quite awhile later. It too was successful.
The process is not working so well any longer. There has been a general view that the lawyers have done it for too long a time, the practice has changed, and the number of qualified volunteers has dropped off substantially.
Many of us resented showing up to find two litigants who were unprepared, argumentative, and too often unrepresented. Essentially, we often found ourselves volunteering our time to mediate disputes between parties who could have hired a competent mediator or even lawyers, but chose not to do so.
Frequently, we would arrive to find one or both sides unprepared, knowing little about their case and with no documents to show account balances, values, or even ownership of assets - it was a waste of our time. Often, we'd drive to the court to find that we weren't needed because the lawyers had agreed to continue the settlement conference, but didn't bother to tell anyone, or one of the unrepresented litigants just didn't show up to participate.
The crowning blow to the system was a directive that we all needed to be trained, go through background checks, and provide personal information, all to continue to do something we had been doing as a public service for a decade or two - for decades, the judges had decided whom they wanted on the panel, and that caused no problems for our courts.
After a few meetings to discuss the new rules, the consensus among the certified specialists was that we needed to use other alternatives, which is where we are today. Many of us no longer volunteer, and there are not enough to handle the cases even though the pool of lawyers has been greatly expanded to fill the gap [with uneven results].
Many of us agree we are better off hiring the right lawyer to supervise settlement, than taking a random choice at the courthouse. And the added benefit is that the setting of a lawyer's office is quiet, free of constant interruptions, and private - at the courthouse, we might have 3 settlement meetings in a single, large, converted jury room - you can imagine how much fun it was to try to think if any one of the 6 litigants was in a foul mood.
Most of us who had been on the panel agreed to offer a reduced hourly rate for the first 3 hours, as a recognition we were providing a service to the community, when providing this service. The unrepresented litigants can still hire a competent lawyer to mediate their dispute, often at very reasonable rates.
My experience last week was mostly driven by the desire to choose the right setting and the right expert. In part, it was driven by a desire to keep the case from going to trial where the outcome was too uncertain. In several cases, the choice was made as a way of finding someone unbiased to give the bad news to one or both of the litigants: "You can't always get what you want, and it's going to cost you a lot of money to find that out."
Each choice fell under the category we call "Alternate Dispute Resolution." The lawyers who contribute to this site sit on both sides of the table in such cases. These alternatives include serving as settlement judge, mediating disputes, handling collaborative cases, sitting as a private judge, and acting as a special master [someone who looks at complicated factual issues and makes recommendations to the parties or the court]. Each of these is appropriate in the right circumstances to keep the case out of court and help moderate costs.
