"... A Settlement Judge, Not a Trial Judge:" Judicial Mediation in the United States

Abstract

Legal scholarship has much to say about the deciding of cases but little to say about their settlement. This is a curious inversion. For, on the contemporary American scene at any rate, the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals that might fancifully be called LITIGOTIATION. By this ludicrous term I refer to the strategic pursuit of resolution through mobilizing the court process. In this process, full-blown adjudication is an infrequently occurring alternative to negotiated settlement though one that remains a compelling presence even when it doesn't occur. The common law is hostile to compromise: decisions are all-or-none, winner-take-all.1 But beside this image we must place our common knowledge that most disputes that come to the courts are resolved without a decision imposed by the court. 'Bargaining in the shadow of the law' is the prevalent means of resolving civil cases in American courts: fewer than ten percent of cases are tried.2 Typically, settlement negotiations involve only counsel for the parties, but in many instances the negotiations are encouraged, brokered or actively mediated by the judge. Most American judges participate to some extent in the settlement of at least some of the cases before them and this has become a respectable, even esteemed, feature of judicial work.3 There have always been a lot of settlements in American civil courts. It is not clear that the percentage of cases terminated by settlement has markedly increased, although it has certainly not declined.4 And, if there