Settlement Judges: Special Help for Special Cases: Tips on How to Succeed

March 2009
By Judge Jerome LaBarre, Multnomah County Circuit Court.

So you hit a wall in trying to settle your big case. The clients on both sides are mired in impasse. Both direct negotiations and private mediation failed. This is when a settlement judge might be able to help. Not every case justifies the use of our scarce judicial resources. But for the right case, this could be the right solution. On our court, in addition to our Chief ADR Judge, the Hon. Kristena LaMar, I am one of a number of judges in the Civil/Criminal Division who sometimes work as settlement judges. If you want to move in this direction, here are some tips to consider.

Judges Are Different Than Private Mediators.

Private mediation is well understood. There are many similarities between it and a judicial settlement conference. But there are also important differences. Settlement judges work in a more formal world. Judges can be evaluative as well as facilitative. My settlement conferences take place on the 7th floor of the Multnomah County Courthouse. I direct one side to wait in the courtroom and the other side to wait in the jury room. I meet with them in my chambers. Trial is the default alternative to a settlement. This quickly becomes obvious to all.

Judicial dockets are busy and the time available for settlement conferences is usually limited compared to what occurs in private mediations. A premium needs to be placed on preparation and efficiency. This is true for both the lawyers and for the judge. Therefore, I impose the following requirements both pre-conference and at the settlement conference itself.

The Pre-Conference Letter Requirement.

In my chambers, once the preliminary scheduling and acceptance procedures are completed, we send out guidelines on what is to be contained in a short confidential letter to be submitted to me by each side. Essentially, the letter must set forth the attorney's candid evaluation of the crucial issues; the obstacles to resolution; and, a proposed "road map" to settlement of the case. The letter should not be about legal positioning. Instead, it should be about what is really needed to assist the court in facilitating settlement.

The Settlement Conference.

Some of the important things which can help in achieving a settlement at the conference are the following:

  1. Have Proof of the Dollar Figures Ready. Medical specialists, lost wages, lien amounts, economic damages and the like all need to be documented and laid out by plaintiff's counsel.
  2. Reveal Past Settlement Offers. My own experience is that I can work best as a settlement judge if I can come in to break an impasse. The parties should have already tried to settle the case before they enlist the help of the court.
  3. Have Authority To Settle. Key decision makers need to be physically present. Each of them needs to be armed with realistic settlement authority. In the case of insured defendants, this usually means an adjuster who is supervisory level or above.
  4. Analyze Your Case and Prepare Your Clients. Attorneys are the professionals who know their own case best. Just as when a medical doctor recommends surgery and obtains informed consent, I believe that an attorney should make a settlement recommendation to the client. This must occur prior to the settlement conference.
  5. Breaking Impasse. Focus on interests, not on positions. Determine how the impasse has come about. Is it a disagreement between counsel or the clients? Does it arise from different views of the facts or the law? Or is it really about a non-legal consideration such as unresolved emotional issues?
  6. Obtaining Finality. Once settlement has been achieved, my practice is to put a summary of the terms of the settlement on the record and have each party and attorney orally state on the court record approval of the terms. Instantly, a binding enforceable agreement comes into existence. There can be no backing out, even though the formal settlement documents are not completed until later.

Asking a trial judge to act as a settlement judge can make all the difference. Who better knows what juries are actually doing in the courthouse? But this powerful tool should be used sparingly. And counsel need to be well prepared to efficiently move the process forward.