4.1 Raising the Possibility of Settlement
In general, judges may encourage parties to resolve matters in dispute; however, in cases involving self-represented litigants, judges must be mindful of special challenges that self-represented parties are likely to face when attempting to negotiate. Accordingly, in deciding whether to encourage settlement efforts in cases involving self-represented litigants, judges should take into account:
- whether self-represented parties have or will be given sufficient information about the law and potential court outcomes to make a knowledgeable decision;
- whether self-represented parties will be vulnerable to pressure because of a power imbalance, cognitive or emotional issues, or other factors; and
- whether self-represented parties with language access issues will be provided with the services of an interpreter.
In proceedings under G. L. c. 209A, it is never appropriate for judges to attempt to reconcile the parties settle the case, or refer the parties to alternative dispute resolution.
Commentary
“A judge may encourage parties and their lawyers to resolve matters in dispute.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 (B) & comment 2 (2016). See also Mass. R. Civ. P. 16, as amended, 466 Mass. 1401 (2013) (“In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference to consider: . . .[t]he possibility of settlement”). Nevertheless, in deciding whether to encourage settlement discussions in a particular case, a judge should consider various factors, including whether any of the parties are self-represented and the relative sophistication of the parties in legal matters. See S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 2 (2016).
Where a self-represented litigant is involved, the judge must also consider whether settlement discussions would be adversely affected by an imbalance of power between the parties. See S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6 (i), as amended, 442 Mass. 1301 (2004) (“The court shall give particular attention to the issues presented by unrepresented parties, such as . . . the danger of coerced settlement in cases involving an imbalance of power between the parties”). In particular, the judge should consider “whether there is a history of physical or emotional violence or abuse between the parties.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 2 (2016). Due to the imbalance of power that may exist where there is a history of abuse between the parties, “no court may compel parties to mediate any aspect of an abuse prevention proceeding under G. L. c. 209A, § 3.” S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 5.
Judges may inquire whether self-represented litigants have consulted available resources to educate themselves about the law, such as the Court Service Center, handouts, Lawyer for the Day programs, etc. Judges should also be acquainted with dispute resolution services offered by the judge’s court department and whether they provide such information – keeping in mind that it is not legal advice to provide information about the law (e.g., elements of claims and defenses) or to identify the various outcomes that could result if the case were litigated to a conclusion.
In cases where a judge is the fact finder, the judge should refrain from commenting on the strength of the evidence before or during trial as a means of encouraging the parties to settle. See discussion infra in Guideline 4.2.
With regard to language access issues, note that § 8.01 of the Standards and Procedures of the Office of Language Access (2021) specifically authorizes assignment of court interpreters for alternative dispute resolution, such as mediations and conciliations, within a courthouse facility.
4.2 Judicial Participation in Settlement Discussions
In cases where settlement may be appropriate, judges generally may provide parties the opportunity to discuss settlement in the presence of the judge and may participate in the discussions, as long as the judge does not act in a manner that is coercive.
Caution is required, however, when the judge will be the trier of fact. If the case does not settle, and the judge has obtained information that could influence the judge’s decision-making at trial or has expressed views that could call the judge’s impartiality into question, the judge should consider whether disqualification may be appropriate.
During trial, fact-finding judges should not attempt to encourage settlement by offering their assessments of the strength of the parties’ evidence before the evidence is closed.
Commentary
“A judge . . . , in accordance with applicable law, may participate in settlement discussions in civil proceedings and plea discussions in criminal proceedings, but shall not act in a manner that coerces any party into settlement or resolution of a proceeding.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 (B) (2016).
Where a judge engages in settlement discussions involving one or more self-represented litigants, the judge, like a neutral in court-connected dispute resolution, “has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.” S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6 (i), as amended, 442 Mass. 1301 (2004).
In deciding whether to participate in settlement discussions, “[t]he judge should keep in mind the effect that the judge’s participation may have not only on the judge’s own views of the case, but also on the perceptions of the lawyers and the parties if these efforts are unsuccessful and the case remains with the judge.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 2 (2016). “Judges must be mindful of the effect settlement or plea discussions can have not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge’s best efforts, there may be instances when information obtained during such discussions could influence a judge’s decision-making during trial, and, in such instances, the judge should consider whether disqualification may be appropriate.” Id., Rule 2.6 comment 3. See id., Rule 2.11 (A) (“A judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial or the judge’s impartiality might reasonably be questioned”). When a judge inquires about the parties’ interest in settlement, such inquiries should ordinarily be conducted on the record. In courts that provide for judicial mediations or judicial settlement conferences that are conducted off the record by agreement of the parties, the record nevertheless should reflect the nature of the process that will be utilized and the parties’ agreement.
A judge’s involvement in settlement discussions can be especially problematic when the judge will be the fact finder. See Furtado v. Furtado, 380 Mass. 137, 151-152 (1980) (observing that when a judge participates in settlement discussions and subsequently serves as the trier of fact, the judge “must be most scrupulous both to avoid losing his impartiality and to maintain his unfamiliarity with disputed matters which may come before him and with extraneous matters which should not be known by him,” potentially requiring disqualification depending on the circumstances). In particular, where the judge is the fact finder, the judge must avoid commenting on the strength of the evidence before or during trial as a means of encouraging the parties to settle their dispute. See Adoption of Georgia, 433 Mass. 62, 64-65 (2000), quoting Preston v. Peck, 271 Mass. 159, 164 (1930) (“[i]f a judge reaches a decision on an issue of fact before the testimony on that issue is completed and thus closes [her] mind to a fair consideration of competent evidence not yet heard, [she] has deprived the party of his right to a full and fair hearing upon the whole evidence”); Adoption of Tia, 73 Mass. App. Ct. 115, 121 (2008) (in making comments during trial assessing the evidence and encouraging settlement discussions, judge “departed from her appropriate role, both in assessing the strength of the evidence well before the evidence had closed and in trying to urge consideration of a settlement in a case where she was the ultimate fact finder”); cf. Pestana v. Pestana, 74 Mass. App. Ct. 779, 782 (2009) (statement made by the trial judge during a settlement conference indicating a mistaken understanding of his legal authority to defer sale of the former marital home was one factor considered in deciding to remand the matter for clarification).
Judges engaging in settlement discussions should also be mindful that such discussions are generally confidential and inadmissible as evidence. See Mass. G. Evid. § 408 (2024) (conduct or statements made during compromise negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim); § 514 (mediation privilege).
4.3 Alternative Dispute Resolution (ADR)
When a case is appropriate for ADR, judges should inform the parties of the availability and benefits of such services.
Judges should familiarize themselves with potential ADR options, including those that are offered by the courts, those that are court-connected but offered by others (such as bar associations or volunteer organizations), and those that are provided in the community. Judges should be aware of ADR programs that provide free or low-cost services and should make that information available to litigants who may be eligible for them. When referring parties to a court-connected ADR process, judges should take steps to ensure that the ADR processes in their court provide self-represented litigants with the tools needed to make an informed decision.
Judges may require parties and/or their attorneys to attend a screening session or an early intervention event regarding court-connected dispute resolution services and in some cases may require them to participate in dispute intervention as permitted by S.J.C Rule 1:18, Uniform Rules on Dispute Resolution. Judges should inform litigants that they are not required to settle their case.
Judges should work closely with any available court-connected ADR programs to ensure that, in those matters in which one or more litigant is self-represented, the ADR process integrates relevant legal information and mechanisms to enhance greater access to justice.
Commentary
In determining if a case is appropriate for ADR, judges should be mindful of any safety concerns. Accordingly, in cases brought under G.L. c. 209A, judges shall not “compel parties to mediate any aspect of their case,” although the parties may separately be referred for information gathering purposes to the Probation Department in the Probate and Family Court or victim/witness advocates. See G. L. c. 209A § 3; see also Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:01 commentary (Oct. 2021) and Guideline 4.1 and related commentary.
S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, as amended, 442 Mass. 1301 (2004), governs referrals to ADR programs for all departments of the Trial Court. See id., Rule 1 (a). These Rules specifically direct courts, including judges, to give special attention to the needs of self-represented litigants who participate in ADR. “The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.” See id., Rule 6 (i).
Courts may refer parties only to an ADR provider that is on the list of approved providers compiled by each Trial Court department, except in exceptional circumstances where special needs of the parties cannot be met by a program on the list. See id., Rule 4 (a), and 6 (a). In some instances, these services may be available at no cost to parties who lack the financial resources to pay for them. In making a referral, courts must inform parties that they are free to select any approved provider on the list, subject to reasonable limitations, or any other ADR provider of their choosing. See id., Rule 6 (a). In addition, the Housing Court and the Probate and Family Court offer court-based “dispute intervention” with housing specialists and specialized probation officers, respectively, who serve as neutrals, “identif[y] areas of dispute between the parties, and assist[] in the resolution of differences.” Id.
In civil cases, courts may require parties and/or their attorneys to attend a screening session or an early intervention event regarding court-connected ADR services, except for good cause shown. Id., Rule 6 (b). In general, the court cannot require the parties to participate in dispute resolution services. Id., Rule 6 (d). However, the Probate and Family Court may require parties to participate in dispute intervention and any court can require participation in a pilot program that is created under Rule 4 (c). Id. Courts must inform the parties that they are not required to make offers and concessions, or to settle their case. Id., Rule 6 (i).
4.4 Review of Settlement Agreements
Judges should personally review settlement agreements involving one or more self-represented litigants, including agreements resulting from ADR, whenever review has been requested by any party or the agreement will become a final dispositive order, judgment, or decree entered over the judge’s signature, unless a comparable review has been conducted by a court facilitator acting under judicial supervision in connection with a court’s own in-house ADR program.
Reviews of settlement agreements should incorporate the following practices:
- engaging in colloquy directly with all parties to the proposed settlement and counsel for any represented parties;
- determining whether the self-represented litigant understands the agreement and its consequences, including the relinquishment of statutory or other legal rights;
- determining whether the self-represented litigant has entered into the agreement knowingly and voluntarily;
- if settlement approval is required or permitted by statute or other law, determining whether the agreement meets the specified legal standard;
- informing the parties if the settlement agreement will be entered as a court order and confirming that they understand the legal consequences of the agreement;
- if a self-represented litigant has limited ability to understand or speak English, ensuring that the agreement has been interpreted, consistent with Guideline 2.3, verbatim into the self-represented litigant’s primary language by a qualified court interpreter, and encouraging the self-represented litigant to obtain a written translation of the settlement documents, including any court order.
A judge shall not approve any settlement that the judge concludes is unconscionable or otherwise contrary to law.
Commentary
The principle that judges should review settlement agreements with the parties when they include self-represented litigants was endorsed by the Supreme Judicial Court in § 3.4 of the 2006 Guidelines. Self-represented litigants may not be fully aware of their legal rights or potential court outcomes, and they may also be unusually vulnerable to pressure. See Adjartey v. Central Div. of the Hous. Court Dep’t, 481 Mass. 830, 837 (2019) (observing that “[t]he challenges inherent in navigating a complex and fast-moving process are compounded for those individuals who face summary process eviction without the aid and expertise of an attorney”); In re Powers, 465 Mass. 63, 66-67 (2013) (noting that, in most small claims and civil motor vehicle infractions cases, “the litigants represent themselves and know little of the applicable law or court procedures” and therefore “might not . . . be in a position to vindicate their rights” without assistance); S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6 (i), as amended, 442 Mass. 1301 (2004) (noting “the danger of coerced settlement in cases involving an imbalance of power between the parties” where one or more litigants are unrepresented). Review of settlement agreements in cases involving self-represented litigants is therefore an important safeguard. Accordingly, judges, including judges with administrative responsibilities, are strongly encouraged to have systems in place that allow for thorough settlement review prior to the entry of judgment. See S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 9 commentary (encouraging “judicial participation in the review of agreements” involving unrepresented parties).
In some instances, judicial review and approval of settlement agreements is expressly authorized or required by law. For example, in small claims cases, if an agreement for judgment is proffered when the parties are present, the clerk-magistrate or judge presiding over a hearing “shall review the agreement and, if it includes a payment order, inquire of the defendant to ascertain that he or she is able to pay the payment order and understands the consequences of not complying with the payment order.” Uniform Small Claims Rule 7 (a). In summary process eviction cases, judicial approval of a compromise agreement between the parties converts the agreement into a binding court order. See Dacey v. Burgess, 491 Mass. 311, 315 (2023); Adjartey, 481 Mass. at 856 (Appendix). A marital separation agreement between a divorcing couple is specifically enforceable only where the court has found that it is fair and reasonable and not the product of fraud or coercion. See Knox v. Remick, 371 Mass. 433, 436-437 (1976); Slaughter v. McVey, 20 Mass. App. Ct. 768, 773, rev. denied, 396 Mass. 1103 (1985); Dominick v. Dominick, 18 Mass. App. Ct. 85, 91, rev. denied, 392 Mass. 1103 (1984). A settlement for damages arising out of a personal injury to a minor or incompetent person is subject to judicial review and approval at the request of a party. See G. L. c. 231, § 140C1/2. See also G. L. c. 152, § 15 (judicial approval of tort settlements where workers’ compensation insurer has lien); Mass. R. Civ. P. 23 (c), as amended, 471 Mass. 1491 (2015) (court approval of class action settlements).
More generally, judicial review of settlement agreements involving self-represented parties should be the norm, especially in cases where the interests at stake involve essential civil legal needs such as housing, family disputes, and consumer debt. This is in keeping with the national consensus to provide special attention to case types involving essential civil legal needs. See Resolution 5, Reaffirming the Commitment of Meaningful Access to Justice for All, adopted by the Conference of Chief Justices and Conference of State Court Administrators at their 2015 Annual Meeting (calling upon state courts to facilitate access to effective assistance in adversarial proceedings involving basic human needs, such as shelter, sustenance, safety, health, and child custody). These high-stakes cases routinely include a very large percentage of self-represented litigants, most of whom are compelled by economic circumstances or other impediments to represent themselves.
In assessing voluntariness, the judge should be alert to potential coercion in any form. In assessing whether a self-represented litigant has knowingly entered into a settlement agreement, the judge should keep applicable legal protections in mind and confirm that the self-represented litigant has not waived them unknowingly.
The judge may also wish to ascertain whether the litigant had the benefit of self-help resources provided by the courts or others and refer the litigant to appropriate resources if it appears that the litigant could benefit from them. This is consistent with the policy stated in S.J.C. Rule 1:18, Uniform Rules of Dispute Resolution, Rule 6 (i), as amended, 442 Mass. 1301 (2004), that “a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.” Cf. Commonwealth v. Scott, 467 Mass. 336, 345 (2014) (“A guilty plea is intelligent if it is tendered with knowledge of the elements of the charges against the defendant and the procedural protections waived by entry of a guilty plea”); Mass. R. Prof. C. 1.0 (g), as amended, 490 Mass. 1301 (2022) (defining informed consent as “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”).
While this Guideline is directed at settlements that are dispositive of the case, judges may in their discretion conduct similar colloquies with respect to temporary orders.
Finally, it should be noted that some Trial Court departments provide ADR services through court personnel acting under judicial supervision. These services include mediation with housing specialists in the Housing Court, see Dacey, 491 Mass. at 315; Adjartey, 481 Mass. at 856 & n.17 (Appendix); Interim Housing Court Standing Order 1-23 (3) (ii) (E); mediation with assistant judicial case managers under the Pathways program in the Probate and Family Court, see Pathways Case Management Initiative in the Probate and Family Court; and dispute intervention with probation officers in the Probate and Family Court, see Probate and Family Court approved Alternative Dispute Resolution (ADR) programs. Court personnel providing these ADR services are subject to the ethical standards set out in S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, which require neutrals to make every reasonable effort to ensure that the parties understand the process, and that they understand and voluntarily consent to any agreement reached in the process. See S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution, Rule 2 (defining a “neutral” to include a “housing specialist, probation officer, and any other court employee when that individual is engaged as an impartial third party to provide dispute resolution services”); Rule 9 (setting out ethical standards applicable to neutrals, including provisions concerning impartiality and obtaining parties’ informed consent).
In cases such as these, where a settlement agreement has been reached as a result of a court’s own in-house ADR program conducted by court personnel acting under judicial supervision, a judge (or other authorized judicial officer) may approve the settlement without convening the parties so long as the judge is satisfied that the court facilitator’s review adhered to the practices enumerated in this Guideline.