The judge’s role at a settlement conference

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Note: Since May 2020, conferences in family and small claims matters are being conducted by telephone, audio- or video-conference. See Virtual conferences and hearings (by phone or video) for more information.

When you get involved in a lawsuit you may not expect that you’ll find yourself sitting around a table with a judge and the other party, talking about your dispute. But in BC Provincial Court small claims cases that’s what happens. You have a “settlement conference” and/or a “trial conference” with a judge before your case is set for a trial.

The role of a judge at a conference is different from their role at a trial or hearing. This eNews explains how these roles differ, and what you may expect from a judge at a conference.

The nature of a conference
A settlement conference is intended to be a confidential discussion between the parties (the people suing and being sued in a lawsuit) and a judge, exploring whether it is possible to agree on some or all of the issues that bring them to court. (If people have hired lawyers, the lawyers may also attend.)

This discussion usually takes place with everyone sitting around a table in a small conference room, not in a court room. The discussion is confidential and things said at a conference cannot be used as evidence in a trial. Because of this, there is usually no audio recording made. Also, because a judge at a conference may hear information that could not be introduced as evidence in a trial, the conference judge will usually not be the judge who presides at the trial if the case does not settle.

A conference is less formal and does not have the same traditional procedures as a trial. As a result, different judges may take different approaches, depending on their own personalities and mediation skills and the personalities and emotional states of the people involved.

For example, at a conference a judge may:

  • speak frankly about the strengths and weaknesses they see in each party’s case. Sometimes it can be helpful to people to hear what a judge with no interest in their disagreement might think about the likely outcome of a trial. This can help people consider how realistic their expectations are, and it may encourage a settlement all parties can accept.
  • help the parties with “reality testing” – ask how they are going to prove their case at a trial, and whether they can they get the evidence they will need.
  • identify which issues are relevant to the trial of the matter, and point out issues that are not relevant even though they may be important to a party. The judge may try to refocus the parties on the legal requirements of the case, in order to give them a realistic idea of what might occur if the dispute goes to trial. However, judges will not give the parties legal advice.
  • speak firmly to ensure the conference is fair and both parties have a chance to talk without interruption.

Research shows people are generally happier with mediated agreements than with decisions made by a judge at a trial. However, no one is required to settle at a conference. While judges will usually try to mediate during a conference, they may not attempt it if it is clear that one or both parties are not willing to discuss possible settlement.

In that case the judge may end the settlement conference without listening to each party’s grievances. They may simply direct that the matter be set for trial (or for a trial conference to prepare for the trial), and perhaps talk briefly about the evidence the parties will need at trial.

It’s important to understand that a conference is not a trial of the case - it is a pre-trial process to help people share information, discuss settlement, and/or prepare for trial when necessary.

Small Claims Rules
The Small Claims Rules list things a judge may do at a settlement conference or a trial conference, including:

  • mediate any disputed issues
  • make an appropriate order agreed to by the parties
  • set a date for another conference or a trial
  • discuss evidence that will be required and the procedure that will be followed if a trial is necessary
  • order a party to give another party information, evidence, documents or records by a deadline
  • order a party to allow another party to inspect damage to property or copy documents and records by a deadline
  • make any other order for the just, speedy and inexpensive resolution of the claim.

The Rules also permit a judge at a conference to decide any issues that do not require evidence. This may include dismissing a claim, counterclaim, reply or third party notice if it is without reasonable grounds, discloses no triable issues, or is frivolous or an abuse of the Court’s process. The judge has a duty to ensure that court time is not spent on a trial when a party has no prospect of success.

Some examples of when a claim could be dismissed at a conference include:

  • when a law prevents a claim from being made
  • when a limitation period (the time limit for filing a claim) has expired
  • when the claim does not come within the jurisdiction of Small Claims Court, for example, when the claim is for libel (written defamation), slander (spoken defamation), or malicious prosecution
  • when a claim has been brought against the wrong party

The time available at a settlement or trial conference is limited. If there is not enough time to hear an application for dismissal or for another order, the judge may arrange for it to be heard in a courtroom on a later date rather than at the conference.

For more information about small claims conferences, see:
What can I expect at a Small Claims Settlement Conference?
What can I expect at a Small Claims Trial Conference?

Use these guides to prepare for a settlement or trial conference:
Getting Ready for court – a BC Ministry of Attorney General Small Claims “how-to” guide for claimants and defendants
Organizing documents for Small Claims Court – tips on preparing documents for settlement conferences, trial conferences and trials
Small Claims BC – Settlement Conferences – Justice Education Society video

This website provides general information only and should not be used as legal advice. Updated October, 2020