In this article...
In this article, we will explain what happens at a pretrial settlement conference in Illinois. We will answer the question, “what is a pretrial settlement conference?”, “at what stage in a case does a pretrial settlement conference occur?”, “What is the purpose of a pretrial settlement conference?” and “what is the difference between a pretrial settlement conference and mediation?” We will also explain what to expect from a pretrial settlement conference.
What is a Pretrial Settlement Conference?
A pretrial settlement conference is a meeting between parties to a litigation case, their attorneys, and the judge, during which the judge works to assist the parties in settling the case rather than going to trial.
At What Stage in a Case Does a Pretrial Settlement Conference Occur?
Pretrial settlement conferences can occur at various stages of litigation. Most commonly, they are held shortly before the trial after all discovery and motion practice has been completed. However, either party can request a pretrial settlement conference, or the judge can order a pretrial settlement conference at any point in the case.
Typically, the parties wait until after written discovery has been completed to conduct the settlement conference because settlement is typically more fruitful once both parties’ positions are known, and all of the facts are on the table. However, settlement conferences can be scheduled even earlier in the case if the case seems likely to settle earlier.
What to Expect from a Pretrial Settlement Conference
Pretrial settlement conferences occur at the courthouse. Generally, all parties and their attorneys are required to attend. However, in some circumstances, judges may allow parties to be available by phone rather than attending in person.
The judge will typically begin by hearing each party’s attorney’s statement of the case. This is typically done in the judge’s chambers. Some judges will meet with both attorneys together, and others prefer to meet with each attorney separately. Sometimes the parties will come back to chambers with their attorneys. At this stage in the conference, the attorneys will explain their position as well as the facts that they think will cause them to be successful at trial. They will also lay out what an acceptable settlement would look like.
Once the judge has heard each attorney’s position, they will generally speak separately to each party with the party’s attorney present. The judge will usually point out the weaknesses in the case of the party to whom they are speaking in an attempt to discourage that party from going to trial. The judge will often tell each party what they believe to be a reasonable settlement and find out if either party is willing to move from their original settlement positions.
If neither party is willing to change their settlement position after speaking to the judge, the judge will typically terminate the conference. So long as the parties are negotiating in good faith, the judge will continue to speak to each individually in alternating turns until a settlement is reached or until the parties reach an impasse.
What is the Purpose of a Pretrial Settlement Conference?
Pretrial settlement conferences increase the chance of settling a case for several reasons:
- When all the parties and attorneys can communicate together in real-time, it is often much easier to make headway on settlement than when the parties engaged in a four-way game of telephone through each of their attorneys. Outside of a pretrial settlement conference context, it can often take several days or even weeks to receive a response to a settlement proposal.
- Pretrial settlement conferences give parties a chance to be heard by the judge. Once the grievance is on the party’s chest, this often paves the way for cooler negotiations.
- Hearing the weaknesses in their case directly from a judge, as well as the judge’s opinion as to what would be a reasonable settlement, often gives the parties more realistic expectations of success and compels them to move from their entrenched positions.
- Even if the parties are not able to reach a settlement in real-time at the pretrial settlement conference, the conference will allow the parties to understand better one another’s negotiating positions and will often pave the way for a later settlement agreement outside of the courtroom.
What is the Difference Between a Pretrial Settlement Conference and a Mediation?
Pretrial settlement conferences are very similar to mediation. In both situations, a third party is meeting with the parties and their attorneys in an attempt to facilitate a settlement.
The primary difference between pretrial settlement conferences and mediation are:
- While a pretrial settlement conference is conducted by a judge at the courthouse, mediation is conducted by a professional mediator (usually a lawyer or a retired judge) at the mediator’s office or a neutral location.
- While the parties do not pay for the judge’s services in the pretrial settlement conference, the parties do bear the cost of the mediator’s time.
- Mediation can be a much more extended process than the pretrial settlement conference because it is not constrained by the judge’s court schedule.
- Mediators also tend to be more creative and flexible in their structuring of settlements.
For these reasons, pretrial settlement conferences are usually attempted first, followed by mediation if the pretrial settlement conference is unsuccessful.
For more on mediation, check out our article: Illinois Family Mediation Explained.