Settlement Adjudication and Judicial Responsiveness: The Choice Between a Wide and a Narrow Model

  • Karni PerlmanEmail author
Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 67)


The chapter describes a range of judicial roles that have developed in Anglo-American law countries and Israel. These roles are implemented in a variety of judicial processes, commencing with traditional adversarial adjudication through settlement adjudication in which significant judicial efforts are made to conclude the case in an agreed solution, and up to judicial processes with therapeutic objectives. The chapter links the collaborative approach towards dispute resolution to changes that have impacted the judicial role and the manner in which that role is performed. It asserts that settlement judging may be pursued along a gradual continuum between a narrow model and a wide model. Each of these models presents a different measure of judicial responsiveness to considerations that go far beyond legal rights and duties in an attempt to address the underlying strata of the conflict. The narrow model expresses judicial responsiveness which is primarily limited to considerations of efficiency whereas the wide model relates to additional needs and interests, such as those involving personal relationships and community welfare. The chapter describes the characteristics of settlement adjudication in terms of both models and argues for the application of the wide model. It suggests that the wide model expresses a more comprehensive conception of the judge as a settler of disputes who displays a greater degree of judicial responsiveness and of judicial proceedings as having the potential to yield a variety of benefits.


  1. Ackerman RM (2006) Vanishing trial, vanishing community? The potential effect of the vanishing trial on America’s social capital. J Dispute Resolut 1:165–180Google Scholar
  2. Alberstein M (2009) The jurisprudence of mediation: between formalism, feminism and identity conversations. Cardozo J Conflict Resolut 11:1–28Google Scholar
  3. Alberstein M (2015) Judicial Conflict Resolution (JCR) a new jurisprudence for an emerging judicial practice. Cardozo J Conflict Resolut 16:879–965Google Scholar
  4. Alfini J (1999) Risk of coercion too great, judges should not mediate cases assigned to them for trial. Dispute Resolut Mag 6:11–14Google Scholar
  5. Auerbach JS (1983) Justice without law?. Oxford University Press, New-York and OxfordGoogle Scholar
  6. Barak A (2002) On mediation. Shaarey Mishpat Law Rev 3:9–11 (In Hebrew)Google Scholar
  7. Berman G, Feinblatt J (2001) Problem solving courts: a brief primer. Law Policy 23:125–140CrossRefGoogle Scholar
  8. Brazil WD (1990) A close look at three court-sponsored ADR programs: why they exist, how they operate, what they deliver, and whether they threaten important values. Univ Chicago Legal Forum 1:303–397Google Scholar
  9. Brazil WD (1991) Comparing structures for the delivery of ADR services by courts: critical values and concerns. Ohio State Dispute Resolut 14:715–811Google Scholar
  10. Brody DC (2008) Use of judicial performance evaluation to enhance judicial accountability, judicial independence, and public trust. Denver Univ Law Rev 86:1–42Google Scholar
  11. Burke K, Leben S (2008) Procedural fairness: a key ingredient in public satisfaction. Court Rev 44:4–25Google Scholar
  12. Bush RBA (2013) Mediation skills and client-centered lawyering, a new view of the partnership. Clin Law Rev 19:429–488Google Scholar
  13. Bush RBA, Folger JP (2005) The promise of mediation. Jossey-Bass, San-FranciscoGoogle Scholar
  14. Colney JM, O’Barr WM (1990) Rules versus relationships: the ethnography of legal discourse. The University of Chicago Press, ChicagoGoogle Scholar
  15. Cratsley JC (2006) Judicial ethics and judicial settlement practices: time for two strangers to meet. Ohio State Dispute Resolut 21:569–596Google Scholar
  16. Daicoff S (2006) Law as a healing profession: the “comprehensive law movement”. Pepperdine Dispute Resolut Law J 6:1–61Google Scholar
  17. Daicoff S (2011) The future of the legal profession. Monash Univ Law Rev 37:7–32Google Scholar
  18. Deason EE (2017) Beyond “managerial judges”: appropriate roles in settlement. Ohio State Law J 78(1):73–144Google Scholar
  19. Dubler NN, Liebman CB (2004) Bioethics mediation: a guide to shaping shared solutions. United Hospital Fund of New-York, New-YorkGoogle Scholar
  20. Edgar AR (1995) A judge’s view—ADR and the federal courts—The eastern district of Tennessee. Univ Memphis Law Rev 26:995–1005Google Scholar
  21. Elliot D (1986) Managerial judging and the evolution of procedure. Univ Chicago Law Rev 53:306–336CrossRefGoogle Scholar
  22. Finkelstein R (2011) The adversarial system and the search for truth. Monash Univ Law Rev 37(1):135–145Google Scholar
  23. Fisher WW, Horwitz MJ, Reed TA (eds) (1993) Philosophy of law American legal realism. Oxford University Press, New-YorkGoogle Scholar
  24. Fisher R, Ury W, Patton B (2011) Getting to yes: negotiating agreement without giving in (Revised Edition). Penguin Books, New-YorkGoogle Scholar
  25. Fiss O (1984) Against settlement. Yale Law J 93:1073–1090CrossRefGoogle Scholar
  26. Frank J (1931) Are judges human? Univ Pennsylvania Law Rev 80:17–53CrossRefGoogle Scholar
  27. Friedman S, Wickelgren A (2008) No free lunch: how settlement can reduce the ability to induce efficient behavior. SMU Law Rev 61:1355–1376 Google Scholar
  28. Fuller LL (1978) The forms and limits of adjudication. Harvard Law Rev 92:353–409CrossRefGoogle Scholar
  29. Galanter M (1974) Why the “haves” come out ahead: speculations on the limits of legal change. Law Soc Rev 9:95–160CrossRefGoogle Scholar
  30. Galanter M (2004) The vanishing trial: an examination of trials and related matters in federal and state courts. J Empirical Legal Stud 1:459–570CrossRefGoogle Scholar
  31. Gilligan C (1982) In a different voice: psychological theory and women’s development. Harvard University Press, CambridgeGoogle Scholar
  32. Glick HR (1971) Supreme courts in state politics: an investigation of the judicial role. Basic Books, New-YorkGoogle Scholar
  33. Goldberg S (2011) Problem solving in Canada’s courtrooms: a guide to therapeutic justice. Accessed 24 Sept 2017
  34. Goldberg S, Sander F, Nancy R (1992) Dispute resolution: negotiation, mediation and other processes, 2nd edn. Little Brown and Company, BostonGoogle Scholar
  35. Grillo T (1991) The mediation alternative: process dangers for women. Yale Law J 100:1545–1610CrossRefGoogle Scholar
  36. Hazard J (1985) Civil procedure, 3rd edn. Little Brown and Company, BostonGoogle Scholar
  37. Hora PF (2011) Courting new solutions using problem-solving justice: key components, guiding principles, strategies, responses, models, approaches, blueprints and tool kits. Chapman J Crim Justice 2:7–52Google Scholar
  38. Horwitz FMJ (1975) The rise of legal formalism. Am J Legal Hist 19:251–264CrossRefGoogle Scholar
  39. Jones M (2012) Mainstreaming therapeutic jurisprudence into the traditional courts: suggestions for judges and practitioners. Phoenix Law Rev 5(4):753–775Google Scholar
  40. Katsh E, Rabinovich-Einy O (2017) Digital justice, technology and the internet of disputes. Oxford University Press, New-YorkCrossRefGoogle Scholar
  41. King MS (2008) Problem-Solving Court Judging, Therapeutic jurisprudence and transformational leadership. J Judicial Adm 17:155–177Google Scholar
  42. King MS (2009) Solution-focused judging bench book. Accessed 24 Sept 2017
  43. King MS (2011) Realising the potential of judging. Monash Univ Law Rev 37(1):171–186Google Scholar
  44. King M, Freiberg A, Batagol B, Hyamas R (2014) Non adversarial justice. Federation Press, SydneyGoogle Scholar
  45. Kloppenberg LA (2013) Training the heads, hands and hearts of tomorrow’s lawyers: a problem-solving approach. J Dispute Resolut 103:103–142Google Scholar
  46. Kovach KK (2004) Mediation: principles and practice, 3rd edn. Thomson West, Saint-PaulGoogle Scholar
  47. Kovach KK (2005) The vanishing trial: land mind on the mediation landscape or opportunity for evolution: ruminations on the future of mediation practice. Cardozo J Conflict Resolut 7:27–75Google Scholar
  48. Kritzer HM (1982) The judge’s role in pretrial case processing: assessing the need for change. Judicature 66:28–38Google Scholar
  49. Kronman AT (1995) The lost lawyer. Harvard University Press, CambridgeGoogle Scholar
  50. Kuhn TS (1962) The structure of scientific revolutions. University of Chicago Press, ChicagoGoogle Scholar
  51. Lande J, Sternlight JR (2010) The potential contribution of adr to an integrated curriculum: preparing law students for real law lawyering. Ohio State J Dispute Resolut 25:247–298Google Scholar
  52. Langbein J (2012) The disappearance of civil trial in the United States. Yale Law J 122: 522–572Google Scholar
  53. Lehman W (1984) Rules in law. George Washington Law J 72:1571–1603Google Scholar
  54. Levin LA, Wheeler RR (eds) (1976) The pound conference: perspectives on justice in the future. West. Pub. Co., Saint-PaulGoogle Scholar
  55. Macfarlane J (2008) The new lawyer: how settlement is transforming the practice of law. UBC Press, VancouverGoogle Scholar
  56. Mautner M (2011) The decline of formalism and the rise of values. In: Law and the culture of Israel. Oxford University Press, OxfordCrossRefGoogle Scholar
  57. Menkel-Meadow C (1995) Whose dispute is it anyway?: a philosophical and democratic defense of settlement (in some cases). George Washington Law J 83:2663–2696Google Scholar
  58. Menkel-Meadow C (1996) The trouble with the adversary system in a postmodern, multicultural world. William Mary Law Rev 38:5–44Google Scholar
  59. Menkel-Meadow C (1999) The lawyer as problem-solver and third party neutral: creativity and non-partisanship in lawyering. Temple Law Rev 72:785–809Google Scholar
  60. Menkel-Meadow C (2000) When winning isn’t everything: the lawyer as problem solver. Hofstra Law Rev 28:905–924Google Scholar
  61. Menkel-Meadow C, Love LP, Schneider AK, Sternlight JR (2004) Dispute resolution beyond the adversarial model. Aspen Publishers, New-YorkGoogle Scholar
  62. O’Brien MT (2011) Facing down the gladiators: addressing law school’s hidden adversarial curriculum. Monash Univ Law Rev 37:43–56Google Scholar
  63. Ombudsman of the Israeli Judiciary (2004) Opinion No. 8/04 Settling disputes through compromise or a verdict by way of compromise. Accessed 24 Sept 2017 (In Hebrew)
  64. Parness JA (2006) Improving judicial settlement conferences. Univ Calif Davis Law Rev 39:1891–1909Google Scholar
  65. Perlin M (2000) A law of healing. Univ Cincinnati Law Rev 68:407–433Google Scholar
  66. Perlman K (2008) It takes two for TJ: correlation between bench and bar attitudes toward therapeutic jurisprudence—an Israeli perspective. Thomas Jefferson Law Rev 30(2):351–365Google Scholar
  67. Perlman K (2009) The new judge? Challenges and transformations of the judicial role in the beginning of the 21st century in view of the ADR (Alternative Dispute Resolution) and the TJ (Therapeutic Jurisprudence) Movements. Ph.D Thesis (In Hebrew)Google Scholar
  68. Perlman K (2010) The role of the therapeutic judge and its reference to ideas derived from the legal realism school. Mhekari Mishpat 26(2):415–461 (In Hebrew)Google Scholar
  69. Perlman K (2015a) A settlement judge? On judicial dispute resolution and a proposal for Israeli law. Mishpat Veasakim 19:365–414 (In Hebrew)Google Scholar
  70. Perlman K (2015b) Dispute resolution: applying non-adversarial and therapeutic justice. Bursi publications, Tel-Aviv (In Hebrew)Google Scholar
  71. Perlman K (2017) The promise of therapeutic judging in cases involving a high level of sensitivity. Lecture presented at IALMH Conference, Prague, 11 July 2017Google Scholar
  72. Plapinger E, Shaw M (1997) Court ADR: element of program design. Center for Public Resources, New YorkGoogle Scholar
  73. Resnik J (1982) Managerial judges. Harvard Law Rev 96:376–448CrossRefGoogle Scholar
  74. Resnik J (2000) Trial as error, jurisdiction as injury: transforming the meaning of Article III. Harvard Law Rev 113:924–1037CrossRefGoogle Scholar
  75. Resnik J (2002) Mediating preferences: litigant preferences for process and judicial preferences for settlement. J Dispute Resolut 1:154–169Google Scholar
  76. Resnik J (2003) For Owen M. Fiss: some reflections on the triumph and the death of adjudication. Univ Miami Law Rev 58:173–200Google Scholar
  77. Resnik J (2006) Uncovering, disclosing, and discovering how the public dimensions of court-based processes are at risk. Chicago-Kent Law Rev 81:521–570Google Scholar
  78. Riskin LL (1996) Understanding mediators’ orientations, strategies, and techniques: a grid for the perplexed. Harvard Negot Law Rev 1:7–51Google Scholar
  79. Robinson P (2006) Adding judicial mediation to the debate about judges attempting to settle cases assigned to them for trial. J Dispute Resolut 2:335–385Google Scholar
  80. Robinson P (2009) Settlement conference judge—Legal lion or problem solving lamb: an empirical documentation of judicial settlement conference practices and techniques. Am J Trial Advocacy 33:113–165Google Scholar
  81. Robinson P (2012a) An empirical study of settlement conference nuts and bolts: settlement judges facilitating communication, compromise, and fear. Harvard Negot Law Rev 17:97–149Google Scholar
  82. Robinson P (2012b) Opening Pandora’s Box: an empirical exploration of judicial settlement ethics and techniques. Ohio State J Dispute Resolut 27:53–108Google Scholar
  83. Sander Frank EA, Goldberg SB (1994) Fitting the forum to the fuss: a user-friendly guide to selecting an ADR procedure. Negot J 10:49–68CrossRefGoogle Scholar
  84. Schuck PH (1986) The role of the judge in settling complex cases: the agent orange example. Univ Chicago Law Rev 53:337–365CrossRefGoogle Scholar
  85. Scott M (2008) Collaborative law: dispute resolution competencies for the new advocacy. Queensland Univ Law Justice J 8(1):213–237Google Scholar
  86. Segev D (2013) The TJ mainstreaming project: an evaluation of the Israeli Youth Act. Arizona Summit Law Rev 7(3):527–538Google Scholar
  87. Shapiro MM (1986) Courts: a comparative and political analysis. University of Chicago Press, ChicagoGoogle Scholar
  88. Sinai Y, Alberstein M (2016) Expanding judicial discretion: between legal and conflict considerations. Harvard Negot Law Rev 21:221–278Google Scholar
  89. Smith SD (1991) Reductionism in legal thought. Columbia Law Rev 91:68–109CrossRefGoogle Scholar
  90. Sourdin T (2002) ADR in Australia. Lawbook Company, SydneyGoogle Scholar
  91. Sourdin T (2011) Five reasons why judges should conduct settlement conferences. Monash Univ Law Rev 37(1):145–170Google Scholar
  92. Sourdin T, Zariski A (2013) The multi-tasking judge, comparative judicial dispute resolution. Thompson Reuters, PyrmontGoogle Scholar
  93. Spencer P (2017) Trauma informed court craft for judges. Lecture presented at IALMH Conference, Prague, 11 July 2017Google Scholar
  94. Steir S (1992) Essay review: reframing legal skills: relational lawyering. J Legal Educ 42:303–323Google Scholar
  95. Stobbs N (2013) Mainstreaming therapeutic jurisprudence and the adversarial paradigm—Incommensurability and the possibility of a shared disciplinary matrix. Accessed 24 Sept 2017
  96. Sulitzeanu-Kenan R, Reichman A, Vigoda-Gadot E (2008) The burden on the judicial system—comparative caseload analysis of 17 states. Accessed 24 Sept 2017 (In Hebrew)
  97. Tidmarch J (1992) Unattainable justice: the form of complex litigation and the limits of judicial power. George Washington Law Rev 60:1683–1817Google Scholar
  98. Tyler TR (1983) What is procedural justice?: criteria used by citizens to assess the fairness of legal procedures. Law Soc Rev 22:103–136CrossRefGoogle Scholar
  99. Tyler TR (2006) Why people obey the law?. Yale University Press, New-HavenGoogle Scholar
  100. Warren KR (2000) Public trust and procedural justice. Court Review 37:12–16Google Scholar
  101. Weinshall-Margel K, Galon I, Ifat Taraboulos I (2015) Creating a case weight index for measuring judicial workload. Mishpatim 44:769–834 (In Hebrew)Google Scholar
  102. Welsh NA (2014) The place of court-connected mediation in a democratic system. Cardozo J Conflict Resolut 5:117–145Google Scholar
  103. Wexler DB (1999) Therapeutic jurisprudence and the culture of critique. J Contemp Legal Issues 10:263–277Google Scholar
  104. Wexler DB (2001) Robes and rehabilitation: how judges can help offenders “make good”. Court Rev 38:18–26Google Scholar
  105. Wexler DB (2014) New wine in new bottles: the need to sketch a therapeutic jurisprudence ‘code’ of proposed criminal processes and practices. Arizona Summit Law Rev 7:463–479Google Scholar
  106. Wexler DB, Winick BJ (1991) Essays in therapeutic jurisprudence. Carolina Academic Press, North CarolinaGoogle Scholar
  107. Wexler DB, Winick BJ (1996) Law in a therapeutic key: developments in therapeutic jurisprudence. Carolina Academic Press, North CarolinaGoogle Scholar
  108. Winick BJ, Wexler DB (eds) (2003) Judging in a therapeutic key: therapeutic jurisprudence and the courts. Carolina Academic Press, North CarolinaGoogle Scholar
  109. Wissler RL (2011) Court-connected settlement procedures: mediation and judicial settlement conferences. Ohio State J Dispute Resolut 26:271–325Google Scholar
  110. Young WG (2006) Vanishing trials, vanishing juries, vanishing constitution. Suffolk Univ Law Rev 40:67–94Google Scholar

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© Springer Nature Singapore Pte Ltd. 2018

Authors and Affiliations

  1. 1.College of Management Academic StudiesRishon LezionIsrael

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