A new service for clients, a new culture for lawyers
The settlement conference

by Louise Vadnais

The Superior Court started providing a new service at the opening of the courts in 2001: the "settlement conference" as governed by Chapter XII of the Rules of Practice in civil matters of the Québec Superior Court (articles 70 to 78), in force since August, 2001. The settlement conference is chaired by a Superior Court judge (article 72) and is in keeping with alternative dispute resolution methods. Its purpose is to assist the parties in settling their case out of court (article 70).

During a training program, Québec Superior Court judges will familiarise themselves with the different techniques used in settlement conferences. "We did not want to lock ourselves in with semantics," said Assistant Chief Justice André Delongchamps in an interview to the Journal du Barreau. "All the settlement processes are available, with the consent of the parties, an essential condition which is the basis of the conference."

The settlement conference is original in that it gives the client both the power of choice and great flexibility, says Justice Delongchamps. "Mediation, conciliation, arbitration, mini-trial: the client has the right to choose the vehicle for settlement. He takes charge of his own case and decides to what extent the judge may intervene, from a simple discussion (What is my evidence worth? Do I have a case?) to a more aggressive stance that may lead to a binding settlement."

A profound change

According to Justice Delongchamps, the change is profound. "More and more lawyers have an ADR practice. These new tools are sought out by the public and judges are following suit. The judge is not confined to his role of decision-maker. The ultimate solution, a trial, is still there. The decision-making function does not change. However, the same problem can now be solved in a different manner."

In the North American context, the judicial function has evolved, particularly in the last decade. He mentions the report of the Canadian Bar Association on civil justice in Canada, which recommended that the judicial system be made to serve the public with less delay and less cost than the present trial system.

Closed, confidential meetings

All disputes - family, civil,and commercial - can be submitted to the settlement conference process, says Justice Delongchamps. The only prerequisite: the case must have entered the judicial system. Through a brief summary (article 72), a request may be made before or during a trial and does not result in an adjournment, even though an adjournment may be ordered by the trial judge (article 73). If a first settlement conference fails, the parties may request a second conference.

In addition, the conference is held in camera and the entire proceedings remain confidential (article 76). "This constitutes an essential protection that permits the openness necessary at such proceedings. The party that shows its hand will inevitably show its weaknesses. The judge, through a proactive approach, will reflect upon this and lead the party to a settlement," he says, adding that openness, good faith and the will to settle are essential if the conference is to succeed.

The evolution of the judicial system

Lawyers have always negotiated out-of-court settlements that judges have ratified without being present at the negotiations. From now on, judges can assume a new role, with a lot of leeway at the procedural level (article 74), to facilitate proceedings at a settlement conference.

The judicial system must evolve and adapt to consumer demand, says Justice Delongchamps. "Citizens must have confidence in the judicial system. This is the foundation of our democracy. Judges must not cling to the rigid decision-maker function and the system must become more flexible. Otherwise, a barrier is created and the citizen reacts negatively to the judicial system."


A new culture

Since the spring of 2001, when the government decided to include other professions in the mediation process, the Superior Court is no longer responsible for the Mediation Referral Service. "We wanted to be involved in the process," he explains. "Our role in the Referral Service was more about form than content. The Superior Court judge did not act as mediation chair, he just provided information. A lawyer or a notary assumed the role of mediator after being accredited by the Québec Bar."

Though conscious that old ways die hard in the legal community, Justice Delongchamps remains an optimist. "At the beginning, lawyers balked at the fast-track procedure and the 180-day deadline. Since then, the culture has changed and this procedure is now prioritized. In the same way, the implementation of the settlement conference requires that we develop a new culture, both at the procedural and philosophical levels. Judges will now be available in a new framework. I am convinced that once it has become familiar, within two years or so, this type of conference will also be prioritized and it will contribute to reduce delays and costs for users."

An example of success? "In New Brunswick, where such a service has been implemented, the local branch of the Bar has even asked the Superior Court to make the process mandatory," says Justice Delongchamps.

The Québec Superior Court Justice hopes that lawyers will become the main spokespersons for this new culture. "They are ambassadors for this new service. The more our culture is open, the more this service will become popular. In short, this new overture by the judicial system will have beneficial impacts if the service is well used."

The first settlement conference

The Saguenay case

Judge Paul Vézina, chairman of the Committee of Rules of Practice in civil matters for the Québec Superior Court, was appointed by Associate Chief Justice René W. Dionne to chair the very first settlement conference, shortly before the rules of practice came into force. The conference was held from April to June 2001 in a case involving two class actions by the victims (2,000 to 4,000) of flooding along the Kénogami River and Lake, in the Saguenay region. The trial, which was expected to last several months, was to be heard by Judge Jean Lemelin.

"At the very start, I obtained consent from the parties with which I co-signed a confidentiality agreement," explained JudgeVézina. "After that, I met with the lawyers, sometimes together, and sometimes separately, both with with and without their clients. At every obstacle, I tried to help. A draft settlement was circulating and when there was a deadlock, I revived the discussion. Judge Lemelin consented to adjournments and I did everything possible to keep the dialogue going. I explained things that had been misunderstood and made suggestions to help the parties agree."

A settlement was submitted to Judge Lemelin who ratified it through judgment in July, 2001. "At the beginning, there was no evident outcome. I was myself fairly sceptical," confides Judge Vézina. "The government was paying the bill and four or five ministries were involved. The claimants acted as representatives for other people in addition to themselves, and had to take into account the comments of the entire group. In the end, we succeeded! The settlement conference has shown possibilities and should be further studied, even though the level of difficulty seems at the outset to be very high."

This article first appeared in Le Journal du Barreau, Volume 33 - number 20 - December 1, 2001.