Judicial Settlement Conferences

Recently the High Court published its definitive Guide to Judicial Settlement Conferences – a welcome clarification for what has been an uncertain area of High Court procedure for sometime.

Judicial involvement in the settlement process can be at two stages – first in the lead up to trial and second, during the trial itself by consent.  In addition, the judge can refer a matter to private mediation by consent.

The takeaway from the guide is that judges will not express a view in the nature of an interim judgement or ruling on the case and will not be involved in caucusing providing clarity after a variety of approaches from different judicial officers around the country for some years now.

While the judge will not provide an evaluation or an opinion of the successful outcome of the litigation, the judge may invite the parties to consider important aspects of the case so that the parties’ evaluation is comprehensive.

Given that many litigants embrace judicial settlement conferences because the process provides an authoritative facilitator who could provide a steer as to what might happen at trial, this may not be welcome in all quarters, especially those who go to a JSC because they have a strong case.

In terms of actual process, the guide does not lay down any bright lines – practitioners will still need to adapt to the judge/associate judge on the day – some will do no more than introduce the process and take the  “leave the parties to it – I’m in my chambers if you need me” kind of approach while others will be much more hands-on, promote case openings and risk assessment in the usual way and may even be involved in the negotiation itself.

All this presupposes that it is appropriate for judicial officers to be involved in the settlement of cases before the court – a role that, in the writer’s view, risks blurring the court’s franchise – but I suspect that ship has sailed long ago. read more…

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