6 minute read
- THE GOOD, THE BAD, THE UGLY!
by theima
Karey Lunau, Affiliate, B.A., LL.B., LL.M., C.S. Managing Partner CDG Law
What fun we had at the IMA Conference in Kingston learning how to make the most out of the dreaded ARB settlement conference! While I cannot possibly provide you with all the tips and insights that were shared at the session, I can share highlights from a truly memorable event.
I want to begin by thanking everyone who participated on the panel: Michelle Cicchino (Gowling WLG), Drew Samuels (DuCharme, McMillen & Associates), Scott McAnsh (NextGenLaw LLP), Greg Martino (MPAC), Tristan Bock (Altus Group), Amboka Wameyo (City of Kitchener), Dan DeVellis (MPAC), John Watling (IPTI), Debbie Brennan (City of Kingston), and Jeff Walker (City of Kingston). Talk about a Dream Team!
The ‘script’ for the mock settlement conference, acted out with Academy Award winning panache by our panelists, included both excellent performances and intentional mistakes that the audience were asked to recognize by using thumbs up and thumbs down.
Before we began our mock settlement conference, however, the panelists were asked to explain how they prepare for a settlement conference. Their tips included one central theme: the importance of properly preparing.
For advocates, preparing includes understanding the strengths and weaknesses of their client’s case, and appreciating the strengths and weaknesses of the other parties’ cases. Advocates rely on their independent and impartial experts to assist them with this analysis.
Advocates use their professional judgment to critically analyze the case to determine what they think the ARB likely will decide if the appeals go to hearing. This does not mean that the advocate disagrees with their expert or their client. It is a recognition by the advocate that the ARB almost never accepts one party’s position completely.
Before the settlement conference, advocates must have realistic conversations with their clients about the client’s expectations: it serves no purpose to convince a client that their case is ironclad when it is not. Advocates should arrive at the settlement conference understanding their client’s view of an acceptable settlement outcome. For most assessment appeals, this usually is in the form of a range of acceptable values.
The experts were all very much aware of their duties of impartiality and independence, which limits their role in settlement discussions both with their clients and in the settlement conference. Experts should be able to point out any areas of weakness in their own opinions and in the other experts’ opinions. They can provide information on where it might be reasonable to adjust a component of value, but experts must do this based on their expertise as valuators and not because this will ‘get us a settlement’.
Clients have a role to play in a settlement conference, particularly if the client has knowledge of property assessment or property values. Clients indicated that they try to approach the issues with an open mind and a willingness to consider the other parties’ positions. Clients also consider the costs of proceeding to a hearing and the consequences of a decision on other files. MPAC and municipal clients consider issues of fairness and transparency.
When we moved on to the settlement conference position of the session, we began with a roll call. Oops! It turns out that the municipality did not send its instructing client to our session! Failing to bring clients to settlement conferences is contrary to the ARB’s Rules, undermines the process, and makes reaching a settlement more difficult. Fortunately for us, however, Debbie was able to ‘call’ Jeff who then had to do the walk of shame from the audience to join us on the panel.
Moving on to the opening comments, the ARB Member asked one of our experts (Tristan) to provide the opening comments for his client. Drew correctly objected because an expert should not be putting forward a client’s position: experts have opinions of value; they do not advocate for their client’s position.
As our settlement conference progressed, we had an interesting interplay between the Member and the advocates. The Member volunteered to provide her opinion of what the likely decision would be if the appeals went to a hearing. Scott politely and clearly objected because he did not think it would be helpful to the settlement discussions. Scott’s objection was accepted by the Member because the process is within the parties’ control. Interestingly, however, when we caucused1 with Michelle’s client, she asked for the Member’s opinion. This is a very good strategy to use if your client is reluctant to move from a position because it allows you to get an opinion from the Member that is not necessarily shared with the other parties.
Speaking of caucusing, we had a very good interaction in caucus with Drew and his team concerning confidentiality. Drew demonstrated how important it is to make it clear to the Member what information, if any, disclosed during the caucus can be shared with the other parties. Usually, a party will request that everything said in caucus be treated as confidential unless expressly agreed.
Also in caucus, we discussed who should make an offer: the advocate or the Member on the parties’ behalf. In our case, MPAC had decided to seek an increase, and the appellant was very upset. It was decided that having the Member convey the offer to the other parties might make them more receptive.
Unfortunately for us, our parties were not able to resolve the appeals. Therefore, we moved on to discuss what should be included in the Member’s Case Management Report and Order (CMRO).
The Member wanted to use the Board’s ‘standard’ hearing management plan (HMP). Drew objected and asked that the advocates be able to consult and provide an HMP after the settlement conference. This is an appropriate position to take if the parties believe that the standard HMP is not appropriate for the appeals.
The advocates also discussed the importance of dealing with evidentiary issues at the settlement conference to avoid surprises at the hearing. Some issues to consider:
• Are there any objections to the experts’ qualifications? If not, ask the Member to note the lack of objection in the CMRO.
• Are there any issues with the evidence, such as a party filing a document not previously disclosed? If so, the CMRO should provide directions on how the issue is to be resolved with prior to the hearing.
• Are there any new documents that a party wants to file before the hearing? Sometimes, parties discover additional documents during settlement discussions. However, unless the documents are in the party’s filing package, they cannot be relied on at the hearing even if they are used and discussed at the settlement conference.
Hearing time is strictly limited: you do not get extra hearing time if you spend some of your allotted time on ‘housekeeping’ issues. Therefore, it is very important that everyone arrives at the hearing ready to go with a minimum of organizational or procedural concerns.
The session provided a lot of practical information that all of us can put to good use as we prepare for and attend future settlement conferences.
