The Canadian Group, the National Self-Represented Litigants Project, has released a very interesting resource: Settlement Smarts for SRLs.
It goes through the process step by step, very much from the self-represented litigant’s point of view. All too often such documents are legal summaries, rather than this kind of material which really puts the reader in the litigant’s shoes.
Here, for example, is the section on being strategic.
It is important to show the judge that you are serious about exploring settlement. Even if you feel skeptical – for example, if you have approached the other party before and they have dismissed the idea – the judge will be much more supportive and helpful towards you if you state your commitment to trying to find a fair settlement.
Your opening statement to the judge is a good opportunity to describe your commitment to a fair settlement, to explain your settlement goals, and why these are important to you. Try to acknowledge in a respectful way the other side’s goals as well. Try to frame what you want to accomplish as goals – which you can express clearly and firmly – rather than as demands or entitlements.
For example, rather than saying “I am entitled to more access to my kids and there must be no last minute changes” say instead “I want to reach agreement on an access schedule that can enable me to plan ahead and avoid the anxiety of last minute changes”. Or, rather than “I demand payment before I complete work on the deck”, instead try “I need to be paid for my time and materials in order to be able to move forward with my commitment to finish the job.”
You should also mention any previous efforts you have made to reach an agreement – for example making an offer, producing documents, offering to compromise on something – even if the other side did not respond or dismissed your efforts.
It is also constructive for the other side to hear you say that if a fair settlement can be reached, you are committed to following these terms e.g. committing to following an agreed access schedule for co-parenting, or agreeing to completing a job for a customer.
You want to show the judge and the other side that you are “settlement smart.”
I thought this section, which integrated lessons from the group’s 2013 self-represented litigant survey particularly interesting and persuasive to the self-represented engaged in the settlement process.
2.5.1 Many litigants believe that their caseis“different”–because of course it is unique and personal to them – and that a judge will “obviously” side with them. Unfortunately, legal outcomes are never certain, which is why so many cases settle before trial when the risks and costs of proceeding become more real and immediate. This primer encourages you to think about settling earlier, even if you are convinced a judge would rule in your favor.
2.5.2 Bear in mind that a settlement agreement will rarely give you – or the other side – everything you want. This may sound obvious, but it is worth repeating that there is no incentive for anyone to settle by agreeing to everything the other side wants – they might as well go to trial and let the judge decide.
2.5.3 Many litigants adopt a strategy of “waiting it out”.They hope that if they persevere, the other side will eventually give up. This may work out – or it may not. In the meantime, you will be stuck in a process that will cost you time and money and sap your patience.
2.5.4 Getting angry, however understandable,is usually counter- productive. You will achieve more if you can express yourself in a calm and reasoned manner that suggests confidence and competence.
It would be nice to think of a range of tools that would help in settlement. These might include predictor tools, tools to marshal arguments, model talking points, advice on how to read the mediator, etc.
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Canada is such a fair and sensible country; I sometimes wonder if I did the right thing in giving it up for a better job.