This post written by Dr Bridgette Toy-Cronin is a blog version of paper delivered at the  ADR Research Network 6th Annual Roundtable, 4-5 December 2017. You can follow the forum on Twitter at #ADRRN17

Once a case is filed in court, settlement commonly occurs at the eleventh hour, just as the case is about to go to trial. By that time a lot of money, time, and energy has usually been spent by all involved. So how do we encourage parties to settle earlier? Or, if they can’t settle, how can we refine the trial issues so the case moves efficiently to trial?

To encourage settlement, courts have tried various different methods including compulsory mediation before filing, judge-led settlement conferences, and court annexed mediation. The New Zealand High Court has moved away from those initiatives, preferring to leave mediation and negotiation as a private matter between parties and focusing its resources on its main job, adjudication. When faced with the huge number of claims generated by the Canterbury Earthquakes though, it re-introduced an initiative it had briefly tried previously, an initial case management conference where the litigants themselves (whether or not they are represented) must attend. The idea is to get the litigants, lawyers, and the judge around a table for a meeting to engage with each other, face to face, and to articulate their objectives for the litigation and the main issues for trial. Nina Khouri whose paper on the Canterbury Earthquake List has been published in the Civil Justice Quarterly,[1] emphasises that this process sets the stage for both effective early dispute resolution and for efficient litigation. Early resolution or efficient litigation is a win-win for the courts and the litigants.

The process has a number of other potential benefits as well. For unrepresented litigants, an initial conference with the Judge is a chance to establish constructive communication with the opposing party and become oriented to the litigation process. For represented litigants, it is a chance to have direct interaction with the court and consider the goals for the litigation, the potential for achieving them, and the cost of doing so. (This is particularly important if the litigant’s lawyer has not performed this function – not all lawyers are created equal). For the court, it is an opportunity to communicate its expectations and the likely timeframes for the progress of litigation. It also provides a structured opportunity for the court to establish the expectation that parties will engage in settlement discussions and opens the door for that to happen. This is a more principled forum for doing this than the informal mechanisms some judges use of putting “heat” on litigants to settle as the litigation is progressing. While some “heat” might result in settlements, it can also leave litigants feeling confused and pressured, an issue I blogged about recently.

As with previous attempts at the rule, the requirement that litigants attend the case management conference has been dropped from the Canterbury Earthquake List. The major reason was the cost involved. These conferences take up a great deal of judicial time and the court did not consider it had the resources to continue staffing them. The other reason offered was that lawyers became familiar with the case management process and each other, and were “able to resolve many preliminary matters by consent on a routine basis” (Khouri at 346). Underlying these explanations may be deeper reasons for why these conferences have not been a “sticky” procedural rule. These reasons include:

• Judicial resistance to more onerous forms of managerial judging, particularly when there is significant ‘emotion work’ in these conferences and they lack the purity and therefore prestige of more traditional judicial work of hearing trials and writing judgments;
• Lawyers’ resistance to a form of conference that interrupts the traditional dynamic of the lawyer being the interface between the client and the court. These conferences may be difficult for a lawyer to manage, as the client participates directly, without the ability of the lawyer to filter or shield the client’s position.

I suspect that these are equally powerful reasons for the failure of the case management conference that includes litigants, than the ones stated. If the conferences do offer the benefits they promise, how can we overcome the cycle of introducing them and then either not using them or informally dropping the requirement for litigants to attend?

One method would be to do a Randomised Control Trial. The Access to Justice Lab at Harvard is a big proponent of this method and while I don’t think it would work in many legal settings this might just be an ideal situation. The idea is that when proceedings are filed they are randomised to either a traditional case management conference or one where litigants must attend. Data could then be collected about the progress of the proceeding. So, a timeline would be created for each case to see if it settled and if so when. If it went to trial, how long did it take to get to trial? To measure whether or not the type of case management conference made a difference to the refinement of trial issues, the trial length could be used as a proxy or the final pleadings could be used to compare the number of causes of action. This would obviously need to be in partnership with the courts who would collect the data and ensure the right type of case management conference was used in accordance with the randomisation. The big payoff would be some empirical data about whether the case management conference involving the litigants really has the benefits it intuitively suggests it may have.

[1] Khouri, N. C. (2017). Civil justice responses to natural disaster: New Zealand’s Christchurch High Court Earthquake List. Civil Justice Quarterly, 36 (3)