Monday, May 26

Settling Significant Cases

Continuing a thread that started with my post When families lose a loved one, do they want the cash or the courthouse? and then continued a week or so ago, Justices seek justice, not peace.

The question is whether settlement is the 'civil analogue of plea bargaining'?

Now, Michael Moffitt of ADR Prof Blog adds the next chapter in our journey, encouraging us to read Settling Significant Cases by Jeff Seul one time Harvard Law and now of Techlawlife and the Boston office of Holland & Knight.

All of the papers discussed in my 3 posts deserve real poolside/fire front time depending upon which hemisphere you read this blog from - as Vickie Pynchon says this week over at Settle It Now! 'Agree with Fiss, Ellinghausen, Laura Nader and Carrie Menkel-Meadow or not, there shouldn't be a mediator practicing who is unaware of these serious criticisms of the mediation process...'

Moffitt comments 'If the Owen Fiss article is a "must read," then I'd suggest Jeff Seul's article, Settling Significant Cases as a must read companion. Seul's article is, I believe, the most thoughtful and thorough response to Fiss'.

The 4 papers in the series are;

1. Framing the Choice between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund (Hadfield)

2. Against Settlement (Fiss)

3. Justice Trumps Peace: the Enduring Relevance of Owen Fiss's Against Settlement (Ellinghausen)

4. Settling Significant Cases (Seul)

Settling Significant Cases Abstract: Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which it claims are absolute, may be wholly or partially discredited by the court. Furthermore, litigation merely shifts the burden of negotiation to judges. I distinguish two types of negotiation, bargaining and moral deliberation, and argue that both should be viewed as legitimate alternatives to litigation for processing disputes involving deep moral disagreement. Deliberative dispute resolution processes present important opportunities for democratic participation, and settlements resulting from them may benefit both the parties and society in ways that litigation cannot. Even where parties are incapable of engaging in genuine moral deliberation, however, settlement for strategic reasons sometimes may be a sensible alternative for parties to a significant case, and should not invite scorn. Litigation and negotiation are complementary, mutually reinforcing social processes, and each has a legitimate role to play in our nation's moral discourse and the evolution of social norms.

1 comment:

Michael said...

Geoff, I agree completely with the view that all litigation has at its core an important component of negotiation. It seems to me that negotiation capability is what distinguishes the best dispute professionals everywhere (whether in court, arbitration, or mediation). Take, for example, a procedural hearing of any type and in any arbitration or country. Although procedure hardly conjures up an image of negotiation, the best litigators will come to the hearing with a goal to obtain through negotiation with the other party and the tribunal, a supporting rationale, and fallback positions. If they are successful, the proceedings will be conducted more to their side's liking. If that's not negotiation, what is?
At the end of the day, we're social animals, and negotiating is one of the key ways we interact at all levels. It strikes me as naive (or perhaps just ivory tower) to believe that judges and arbitrators can or should be immune to or above this essential part of being human.
That, and my general lack of creativity to come up with a name like "blah blah", was the reason for calling CPR's podcast International Dispute "Negotiation" instead of, say, International Litigation or Global Dispute Resolution. Forms and practices of dispute resolution are interesting, but negotiation is where the real action is.
All the best, and thanks for the always interesting posts.
Mike Mcilwrath