I recently helped negotiate settlement in a civil action against the police. The case, which you can read about here, was unusual because it was settled during a Joint Settlement Meeting, a key part of alternative dispute resolution used in civil litigation.
This is why:
- joint settlement meetings are a good idea
- the police wrongly avoid them, and
- I encourage the police to embrace ADR and JSMs in particular.
What is a Joint Settlement Meeting?
A Joint Settlement Meeting (JSM for short) is a meeting between the parties to try to settle a compensation claim. JSMs are used in the alternative dispute resolution (ADR) of civil litigation claims to
- resolve disputes
- promote amicable settlements
- reduce legal costs
- preserve court resources
- avoid the stress of court trials.
Compensation claims often settle at these meetings because the parties (usually) meet in face-to-face discussions. And, to aid negotiations, settlement offers can be made on a “without prejudice” (off-the-record) basis.
What is Alternative Dispute Resolution (ADR)?
The Civil Procedure Rules promote ADR because “Litigation should be a last resort”. The Rules state that:
“the parties should consider whether negotiation or some other form of Alternative Dispute Resolution (“ADR”) might enable them to resolve their dispute without commencing proceedings.”
Both sides can seek to settle claims through ADR at any time. ADR includes:
Courts expect the parties to take the obligation to enter into ADR seriously. This is shown by the word “should” in the quote above. If the parties unreasonably refuse this requirement it:
“will be taken into account by the court when deciding who bears the costs of the proceedings.”
What is Special About Joint Settlement Meetings?
Formal joint settlement meetings are part of ADR. But they take place after court proceedings have started. They are usually (but not always) held face-to-face. The parties can also hold virtual Joint Settlement Meetings using video and/or telephone conferencing by agreement. I expect this will happen more given coronavirus (covid-19) concerns.
How Do JSMs Work?
Usually, both claimant and defendant (or an authorised representative) meet at an agreed venue. They set up separate meeting rooms. The lawyers then meet in a “neutral” third room to discuss the case.
They shuttle between this room and their clients/ representatives as negotiations progress.
Both sides are expected to take part in good faith discussions to try to deal with the issues between them. They can put forward settlement offers about liability (responsibility) and quantum (claim value) at any time during Joint Settlement Meetings.
And in my experience as a specialist in civil actions against the police, seeing the whites of your opponents’ eyes can be invaluable in assessing the strengths and weaknesses of their case.
Meeting face-to-face also helps because, even if the parties do not settle the claim that day, narrowing the issues can result in settlement later.
Why the Police Avoid ADR and JSMs
It is no wonder that the drafters of the Civil Procedure Rules encourage both sides to use ADR and JSMs. But the police seem reluctant to use them, despite the carrot-and-stick incentives. Why? I can think of three reasons. They:
- don’t want to appear “weak” after filing a formal defence denying liability
- have (virtually) unlimited resources to fight claims, and want to send a message that every claim will be fought to trial
- may find it easier to avoid settlement negotiations, which require senior officers’ approval and police force accountability.
There are more, no doubt.
Why Police Forces Should Embrace Alternative Dispute Resolution
But each one of these excuses to avoid joint settlement meetings and/or ADR can be challenged:
- There is no weakness in trying to settle a claim. Litigation is inherently risky. Both sides think they can win and might consider their case “open and shut”. But if a case goes to trial the prospects of success are 50:50, making every trial a calculated gamble. The risks are heightened when you consider things outside the parties’ control, like the whims of judges and juries, and the performance of witnesses. Exploring the possibility of settlement is a good thing. It gives the parties certainty, avoids wasting court and police officer witnesses’ time, and saves the police and their lawyers hassle and expense.
- The police are publicly-funded. This arrangement is great gift to their in-house litigation lawyers. Unlike claimant solicitors, salaried police lawyers do not have to justify their fees or take the risk of not being paid under “no win no fee” agreements. Instead, they can rely on taxpayer funding while they delay, deny, deflect, and try to wear out their opponents. With budgets in the millions of pounds, police lawyers are protected from their own inefficiencies and excesses. And yet legally-qualified police lawyers are under a professional duty to act in the best interests of their clients: Chief Constables of the UK’s police forces. These senior officers are expected to justify their outlay on police misconduct compensation claims. With that in mind, police lawyers should help them settle claims using ADR and JSMs where appropriate.
- Contrary to some views, seeking settlement in a police compensation claim is often easier than going to trial. Why? Because it forces the parties, including senior police officers, to take a critical look at police misconduct. Senior officers might find this hard to confront when their officers’ and force’s reputations are on the line. Settling claims can also have political consequences. Media scrutiny often follows. And yet, doing the hard work of resolving litigation without a court trial helps how the police are viewed. The public and politicians know that the police do not always get it right. How senior officers handle police misconduct and seek to learn from mistakes is crucial in re-building trust.
Positive JSM Outcome
I should give credit where it is due. As I mentioned earlier, our client’s case was settled because the police sensibly agreed to a joint settlement meeting where we could resolve his claim. This saved a lot of time, money, and stress. But this approach should be the norm, not the exception. ADR and JSMs work for everybody and I encourage the police to use them.
Daniel Fitzsimmons is a Chartered Legal Executive who specialises in civil actions against the police throughout England and Wales. Contact him here.