Should trial judges urge parties to settle?

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When people arrive in a courtroom for their family or civil trial, judges sometimes suggest that they discuss settling their case rather than start the trial right away. This practice can be controversial. Today’s eNews considers the practice and presents arguments on both sides.

An extreme case
Let’s start with Abdulaali v Salih, an Ontario Superior Court of Justice case of extreme judicial pressure to settle. There, the parties had agreed to a divorce order but the husband opposed the wife’s application for a restraining order against him, so the matter was set for trial. The wife was willing to agree to a mutual restraining order prohibiting either party from contacting the other, but the husband would not agree.

The trial judge considered the husband’s position unreasonable. In a written endorsement to the order he eventually made, the judge complained about the cost to the public of litigating the matter with Legal Aid lawyers. He said he had outlined his concerns to the parties and suggested they discuss “a sensible resolution”, adding:

31. To add motivation, I explained that if they didn’t come to their senses I would formally request that the Area Director of Legal Aid Ontario attend before me to justify the obscene expenditure of tax money on a simple case with such an obvious solution.
32. A few minutes later they came back with Final Minutes of Settlement which I hereby incorporate into an order.

There were positive media reports on the judge’s comments about this case, with the Toronto Sun calling it “yet another brilliant ruling”. But there was also criticism of the judge’s actions in pressuring the parties to settle.

In an article published in and, University of Calgary Faculty of Law Professor Alice Wooley wrote that the case presented a factual dispute as to whether domestic violence had occurred and a legal dispute as to whether the wife met the legal test for a restraining order. She stressed that a judge’s role is to decide such issues. She viewed the results of the settlement imposed by the judge this way:

• The husband had to agree to a no-contact order premised on an allegation of domestic violence he said was false.
• The wife had to agree to be subject to a no-contact order even when the facts she stated did not justify it.
• Thus, whatever the true facts, the order that was made pressured one of the parties into sacrificing their legal rights.

Prof. Wooley also described the potential impacts of restraining orders on the parties: implications for their immigration status, prejudice in other legal proceedings and on applications to belong to a trade or profession, and the moral stigma of an inference that they committed domestic violence. She asserted these consequences are justified only if legally merited, or if voluntarily consented to.

It is probably rare for a judge to exert this kind of pressure on parties to settle. However, judges certainly do sometimes raise the possibility of settlement at the opening of a trial. Such judicial intervention can range from a mild question as to whether there is any point in allowing time for settlement discussion before hearing the evidence, to an impassioned exhortation to focus on the children’s welfare and “work it out”.

Why trial judges may raise the possibility of settlement
Why do judges do it? There are several possible reasons. First, they may be thinking of research that shows people are more satisfied with solutions they agree on themselves than with those imposed by a third party like a judge, and that agreed solutions tend to work better and last longer. Experience may tell them an agreed settlement would be better for the parties than a trial where the need to present negative evidence about each other is likely to intensify hostility.

Second, they may feel ill-equipped to decide certain issues that really don’t have a legal aspect, especially when they are unlikely to receive all the relevant and necessary evidence. For example, is a judge the best person to decide what school a child will attend when they have little information about the child’s needs and must rely on the parents’ opinions of the strengths and weaknesses of two schools?

Third, there is sometimes insufficient court time for a judge to hear all the trials set for hearing that day. Encouraging settlement can seem a lesser evil than sending people away with their issues unresolved.

What’s the downside?
Simply asking if the parties would like a little time to make a last attempt at settling may not be objectionable, if the judge conveys the impression that ‘yes’ and ‘no’ answers are equally acceptable. But pressuring the parties, or seeming to pressure them, raises more issues.

The parties and their lawyers may well resent that kind of intervention. They have come to court ready for a trial. Experienced, responsible lawyers will have already exhausted every settlement possibility, so further discussion would be a waste of time. Parties without lawyers may think that if they could have worked it out they wouldn’t have devoted their time and trouble to getting time off work, arranging childcare, and preparing for a trial. They may think the judge doesn’t want to hear their trial.

If parties feel coerced into settling, the resulting agreement may not meet their needs. It may be resented, and therefore less effective than an order imposed by a judge after a full and fair hearing.

As a practical matter, taking time for fruitless settlement discussion at the start of a trial could mean the trial starts late and doesn’t finish in the allotted time, resulting in adjournment and forcing the parties to return for continuation on another day.

Is there an answer?
The extent to which trial judges should canvas possibilities for settlement at the beginning of a trial is a complex issue – but clearly one that would be illuminated if judges could hear the perspectives of the people that appear in their courts.

In Canada, judges don’t usually receive feedback from litigants or lawyers, so they don’t find out whether their well-meant suggestions about settlement are appreciated or resented. They don’t learn whether comments intended as helpful suggestions are perceived as intimidating pressure. Judicial education programs, articles by lawyers and litigants, and other means of obtaining “user-experience” information - the perceptions of the people involved in trials –could provide judges with valuable insights.

Just having a conversation about it could be helpful. Tweet your comments to @BCProvCourt.

Note: This article does not deal with the important issues raised by the judge’s comments in Abdulaali v Salih on whether the parties should have been given Legal Aid and whether they were entitled to court time to resolve their dispute. While the Toronto Sun praised this aspect of the judge’s comments, Prof. Wooley’s article offers a well-reasoned critical perspective on the judge’s comments, and more generally, whether judges should express opinions on public policy issues they are not required to adjudicate.