An excellent Osgoode Professional Development program took place on 26 November- Successful Settlements: Strategies & Tactics for Civil Litigators.
To my mind it highlighted the divergence developing within the legal profession in Ontario.
Several of the speakers addressed settlement methods including mediation, second pre-trials and strategies for getting to yes. They emphasized the psychology of settlement discussions, and the therapeutic value in giving the parties the opportunity to vent their feelings on the issues. One speaker reported how she was thanked by a party who said until that point, “I spent thousands of dollars and no one had heard what I have to say.”
Others favoured allowing parties to pursue their rights in law, to have their day in court, if they choose that path. Some spoke of the public interest in the resolution of private disputes through the development of the common law. One quoted extensively from a 1984 paper by Yale Law professor Owen Fiss, “”Against Settlement”.
While several speakers maintained that a litigator can also mediate, there is the view that the two roles are separating into different camps of practitioners with different skill sets and goals.
This was well illustrated by a panel on emerging issues in the settlement process: “When Two Heads Are better Than One”. Their presentation illustrated how the two roles can be allowed to operate in a complementary way, through the use of “Settlement Counsel” in conjunction with “Litigation Counsel”.
My suspicion is that over the next decade out of the general body of litigators will emerge a smaller, boutique group of litigation practitioners whose practise is restricted to the traditional litigation role. They will not handle mediation. Their fees will be predictable (not open ended hourly rates), and proportional to the amount in issue. Their clients will be those who choose to have their disputes determined according to law.
An interesting question is: will procedural rules and judicial attitudes try to prevent this evolution, by imposing procedures such as mediation and second pre-trials on all litigants?