I wrote here that mediations are often preferable to settlement conferences. The mediator is chosen by the parties, while the trial judge who presides over the settlement conference generally is not. Further, the mediator often has more time than the trial judge to devote to the settlement process.

This month’s Forum Magazine published an article by Kristine Meredith and Judge John Judge John F. Herlihy (ret.)Herlihy (recently retired from the bench and now a private judge) that touched on this very topic.  Kristine asked Judge Herlihy, who has 29 years experience on the bench, why the parties should even bother attending a pre-trial settlement conference if the case couldn’t be settled at a mediation.  According to Judge Herlihy, timing can be everything:

As the case gets closer to trial the [likely] outcome becomes clearer.  I often told lawyers that although the case didn’t resolve at mediation, as a trial judge, I had an advantage that the prior mediator did not have.  If the case didn’t resolve when it was in my department for trial, then the next step was to call for the jury panel.  That immediacy had a direct effect on the parties’ and attorneys’ willingness to try one last time to settle.

"Reality Check: A Trial Judge’s Approach to Settling Cases," appears in the May/June issue of Forum Magazine.  The full text is available from the Consumer Attorneys of California