In California Family Law proceedings, between the date of the initial filing and trial there may be a date set by the Court, or by joint agreement through the Parties, prior to trial, for a Mandatory Settlement Conference to occur. A common question that results from either the initial discussion of this aspect of family law litigation in California and/or subsequent to the Court communicating it’s intent to urge the Parties to attend a Mandatory Settlement Conference, is simply, “What is it?”.
A Mandatory Settlement Conference (“MSC”) is a date set by the Court for Parties in a family law proceeding to have a third-party “commissioner”, judge, or attorney act as an impartial mediator. This date can be set by the Court itself, and/or through joint agreement of the Parties by filing a “joint readiness statement” with the Court, notifying the Court that that the Parties are prepared and willing to go to the Conference.
The general idea is that this is a pre-trial event which can be used to potentially lead to a settlement during that conference, or at least, provides context to how the litigation may proceed on various issues and arguments if it were to go to trial in the future. Settlement is not required and there is not a penalty or prejudicial impact if the Parties are unable to settle at the conference that will follow them to trial.
Furthermore, and importantly, Parties are required to participate in a Mandatory Settlement Conference (MSC) prior to conducting a trial. This means that if a settlement agreement cannot be reached, that this will be one of the pre-trial requirements prior to the litigation moving to trial.
The simple idea is to attempt to provide a trial like event before the actual trial, so see if the Parties may potentially reach resolution, and to potentially alleviate the impact on the Courts of future trials being required if it is possible for the Parties to find an agreement on some or all issues of their cases at the MSC as opposed to trial.
A commissioner is appointed by, and serves at the pleasure of, the Judges of the court, and act as temporary judges presiding over cases directed by the Presiding Judge. For the purposes of this article, the various persons that can preside over the MSC will be referred to generally as the “mediator” from here out. The MSC date being set will trigger certain deadlines related to subsequently required filings, and appearances by the Parties and their attorneys related to the MSC date as well.
For example, leading up to the MSC date, the mediator reviews the “trial briefs” submitted by the Parties leading up to the MSC date, and then hears the positions of the Parties during the Conference itself, and provides commentary and suggestions based on their experience and review of the briefs as to what the likely outcome for the various issues involved may be at trial.
Another important factor for consideration in setting a MSC date is that the process of “Discovery” which is where the Parties can seek information and documents from the other party that are relevant to the litigation, is impacted by the MSC being set. A discussion as to the pros and cons of discovery is outside of the scope of this instant writing but is an important factor to discuss with your licensed California family law attorney as part of this process as well.
Prior to the MSC date, each party must prepare a written statement of their position commonly referred to as their “trial briefs” or “MSC statement” and although this is not a true trial brief as the MSC is not a trial, the preparation and content for this statement will effectively mirror that of a trial brief and provide a useful simulation of that that process is and what information and evidence are available just as if a trial were going to occur.
The MSC statement must be served on all parties and lodged with the settlement conference judge five court days before the settlement conference. The MSC statement must include necessary information to concisely support issues of: Liability, Damages, A settlement demand and offer, an itemization of damages, both special and general, and if there was a previous offer. Generally, MSC statements must not be more than five (5) pages. After the MSC occurs, the Parties will either reach a settlement agreement and begin the process of filing a Judgment with the Court to finalize their case, or, if no agreement can be reached, the Court will determine if another MSC is needed, or set the matter for a Trial Readiness Conference (TRC).
The greatest benefit of an MSC is that the preparation of the MSC statement or “trial brief” and the application of analysis from a neutral third-party can provide advanced context and information as to how the issues may be ruled over if a trial were to occur. It also provides an opportunity in advance of trial for the Parties to attempt to settle some, if not all, of the issues of litigation. The preparation of preparing for the MSC can often lead the Parties to resolve one or more issues of their litigation prior to trial and either streamline the trial process or even potentially negate it fully through settlement.
MSC’s can often be a useful tool and process for the Parties to California Family Law litigation to either determine their likelihood of success on various issues in dispute prior to an actual trial or to resolve some or all issues in dispute prior to trial. An experiences California Family Law attorney can help you navigate this process and to determine the pros and cons of entering an MSC prior to trial, whether the time is ready for an MSC to begin with, and to prepare for the MSC when it is set to provide you with the highest likelihood of presenting a strong and competent case towards reaching your goals.