Where to Go with Judicial Settlement Conferences in the District Court?

Issue November/December 2022 November 2022 By Hon. Daniel Crane, District Court judge on recall
Dispute Resolution Section Review
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Hon. Daniel Crane

Before the pandemic, many district courts made conciliation programs available that assisted parties in successfully resolving many civil actions. Volunteer lawyers conducted these conciliations in person in the courthouse. This work was suspended as courts reduced in-person events.

A limited number of volunteer attorneys were able to conduct conciliations remotely for some courts. The number of these events was small because of availability of volunteer time and court resources to coordinate and schedule these remote events as well as technological challenges. Where it was feasible, some courts offered to conduct judicial settlement conferences.

Sitting judges conducted all of these settlement conferences remotely with lawyers and parties or their principals or insurance adjusters present. Judges conducting these conferences announced at the beginning of the conference that they would be recused from any further proceedings other than any scheduling matters if the case did not settle because the judge would engage in ex parte communications with the parties in breakout rooms. The settlement judge also obtained the parties’ agreement that all communications during the settlement conference would remain confidential as well as any communications that occurred in the breakout rooms that the parties requested to be kept confidential. Judicial settlement conferences were not offered in matters involving debt collection cases or with self-represented parties. There was no charge to the parties for the conference.

During the weeks of May 9-20, 2022, a one-time judicial settlement conference event was offered throughout the state for all qualifying civil cases. Participation in the conferences was voluntary, and parties or their principals with full settlement authority, including insurance adjusters, were required to attend. Cases at all stages of litigation could request a conference. Notice about this event was published in Massachusetts Lawyers Weekly and sent to clerk’s offices and bar associations in mid-March 2022. The requests to participate exceeded expectations. Over 40% of the cases that requested judicial settlement conferences were resolved at or before the conference. It should not surprise anyone that the likelihood of resolution was affected by proximity to trial, completion of discovery, and whether parties or principals with full settlement authority participated.

Now that additional volunteer lawyers are available for more remote or in-person conciliation events, should judicial settlement conferences continue, how widely should they be available, and when should they be conducted? 

Courts should continue to offer conciliation services as they did before the pandemic, either through volunteer conciliators or judicial settlement conferences. Many of these programs will be conducted remotely now or with some conciliators being in court and others participating remotely. This will depend upon available volunteer and court resources in each division of the district court. Conciliation services have been much more likely to be available in courts with larger volumes of civil cases. This is probably a function of having a significant enough volume of civil cases to warrant the effort to train and administer a panel of volunteer lawyer conciliators. Judicial settlement conferences offered on a regional basis may be a way for courts that do not have their own conciliation program to access those services. Judges who are from the same region but do not usually sit in a court that lacks its own conciliation services may conduct judicial settlement conferences remotely. This will avoid disqualification of judges who frequently sit in the court where the action is pending if it does not settle. 

Last, any conciliation event, whether by volunteer lawyer or judge, should be conducted after discovery is complete and before a final pretrial conference from which the settlement judge is also recused. This should occur no more than 10 days to two weeks before a final pretrial conference and firm trial date. This focuses the use of volunteer or judicial resources on actions that will not settle without help from a neutral. It also does so at a time when an outcome favorable to either party may be uncertain. They are more likely to resolve their disputes at this moment when they can avoid devoting time and money to trial and preparation for an uncertain result.

Lawyers with civil business in the district courts should make the effort to ask the clerk or a judge they are appearing before to find out if that court has conciliation services available furnished by lawyer volunteers or through judicial settlement conference. 

Hon. Daniel Crane sits as a recalled judge in Lowell. He conducts judicial settlement conferences there and in other district courts in Middlesex County. He also teaches dispute negotiation at Boston College Law School as adjunct faculty.