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Before Going to Court

There are times when you may need help to settle a disagreement. For example:

  • you do not want to pay someone you hired to work on your house or car, because the work was not done as agreed
  • you have a dispute with your neighbour over something like noise, a fence or a tree
  • you have been fired and you do not think your boss had a good reason
  • your landlord is threatening to kick you out of your apartment
  • you bought something and it does not work like the seller said it would
  • you and your spouse are separating and do not agree on things like child support

You may decide that you will need to take the other party to court to deal with the matter but before you do there a number of things you should consider. Court cases are time-consuming and expensive and there is no guarantee that you will win your case. It is important to explore other ways of dealing with the situation and to look beyond the end of the case and consider if you will be able to collect on a judgment against the other party.

Settlement

Courts are there to help people resolve disputes. However, almost all civil cases are settled before trial. Settlement can save you time, energy and money. It also gives the parties control over the outcome. Your settlement can be a tailor-made solution to the dispute. It can even make enforcement simpler because parties may be more inclined to abide by terms they have agreed to.

When to Settle

Settlement can happen any time before the judge makes the final decision after a trial. The earlier you settle the more time, energy and money you will save. When, or if, to settle is a personal decision. Sometimes waiting can help because you may have more information as the case goes on. Sometimes it just means getting more frustrated and spending more time and energy.

The decision to settle must be yours. You cannot be forced to settle. Take some time to make an informed decision and do not agree to anything you do not fully understand.

Settlement agreements are almost always based on a compromise of some kind. Neither party gets everything they want. You need to decide if the proposed agreement gives you enough of what you want, keeping in mind the cost and uncertainty of continuing with a court case.

How to Settle

Before you try to reach an agreement there are a few things you can do to get ready.

Find important records and documents. Keep records of what happened. This may mean keeping things like receipts, but it can also include copies of emails or texts. Make notes about what happened and when it happened. Notes are especially important if the conversation took place in-person or over the phone.

Learn about the law that deals with your situation. Knowing your rights and responsibilities can help you come up with a good solution.

If either party wants to suggest a compromise to the other party they can do this without affecting the outcome of the case in the event it does go to court. To do this the party can put the suggestion in a letter to the other party and mark it "without prejudice."

There are a number of different ways to reach an agreement. Sometimes the parties negotiate through their lawyers or, if they are not represented, directly with each other. Sometimes the parties may use services, such as meditation, to reach an agreement. The law recognizes the potential benefits of settling a case by agreement and there are procedures to help parties reach an agreement.

Before you enter into an agreement to settle your case you should think it over. Once you agree to something, you usually cannot just change your mind. Take time to consider any solution the other party offers. Consider the time and money you may need to spend to take the matter to court if you are unable to reach an agreement. In some cases, it might be best to compromise so the matter can be settled. Deciding to settle a matter should be voluntary. You should not feel forced to agree to a solution.

Regardless of how you reach an agreement it should be put into writing. You should carefully review the written document to make sure it reflects what you agreed to with the other party. You may want to consider getting a consent judgment so that the agreement can be enforced as a court order.

Parties do not have to agree on all matters. They can agree on some parts of the claim and have the rest decided by the court. If the claim is to be paid over time but the parties are unable to agree upon how that will be done, they can go to court and have the judge help them work out a payment plan. If instalment payments are agreed upon, any court proceedings that have been started may be adjourned provided that the payments are being paid on time.

If you and the other party are able to come to an agreement it is important to put the agreement in writing, referring to the court proceedings by number (if proceedings have been started). Having the agreement in writing can help prevent misunderstandings concerning what was agreed to. Settlement agreements should be dated and signed by each party, in the presence of a witness if possible.

If court proceedings have been started and the matter is settled, advise the court of the settlement immediately, so that the claim can be discontinued and court dates may be reassigned.

Mediation

If the parties to a claim cannot come to an agreement on their own they may want to try mediation. Any party to the dispute may suggest mediation. In order for mediation to proceed, both parties must agree to participate.

A mediator is a trained professional such as a social worker or lawyer. If you think you would like to try mediation you can find a mediator by contacting the Dispute Resolution Office of the Government of Saskatchewan, talking to friends who have used a mediator, looking in the yellow pages of the phone book or searching an online directory such as the one provided by Conflict Resolution Saskatchewan.

You can talk to a mediator before deciding to go ahead with mediation. They may be able to answer your questions and help you decide if this is the right process for you. A mediator does not replace a lawyer. If you need legal advice during the mediation process you will still need to go to a lawyer. In some areas, such as Saskatoon, a mediator may be provided at no charge.

To start the mediation process either you or the mediator can contact the other party to see if they are willing to participate in mediation. The parties and the mediator can then agree on when to meet and start the process. Any court proceedings that have been started may be adjourned while you are in mediation.

A mediator will meet with all parties and help you discuss the issues and identify options for resolving the conflict. You have the chance to work out a solution that is agreeable to both sides in a less adversarial setting. You are in control of the terms of that agreement.

If you reach an agreement as a result of mediation you have a number of options with respect to any court proceedings that were started before mediation. Before agreeing to any of these options you should talk to the court staff. After mediation the parties may agree to...

  • adjourn the case until the agreement is carried out
  • take any remaining unresolved issues back to court
  • file the agreement with the court and ask for a consent judgment

Consider Collection Before You Sue

It is important to consider your chances of collecting on a judgment before you go to the trouble and expense of starting a court action. It is also important to remember that collecting on the judgment will be up to you and at your expense.

You will want to consider the financial situation of the person you are thinking about suing. Consider whether the person has a job, owns land or has other things of value. Also consider if the person owes other people money. In some cases other debts will be paid before any money will come to you.

You may also want to look at whether the person will have more money or assets in the future. A judgment is valid for ten years and, if registered with the Court of Queen's Bench, may be renewed for further ten year periods. If the person later gets a job, has a better year in business, inherits money or buys assets, you can take enforcement action based on your judgment at that time.

For more information see Collecting on a Judgment.

Limitation Periods

If you are considering starting a lawsuit it is important to know that there are time limits for doing this. Usually it is two years from the time the loss or injury is discovered. For debts it is usually two years from the time the last payment was made or the debtor acknowledged the debt in writing. Determining limitation periods can be difficult and the rules are not the same for every kind of lawsuit. If you have a question about time limits you should consult a lawyer

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