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The Responsive Judge pp 61–86Cite as

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

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

Abstract

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.

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Notes

  1. 1.

    For further analysis of the points raised in this chapter as applied in Israeli Law see Perlman (2015a).

  2. 2.

    For example, the Legal Realism movement, which challenged the formalist world view and the judicial role derived from it. This movement which found expression in the 1920s and 1930s influenced the growth of various legal theories including the Therapeutic Jurisprudence movement described below in this chapter. For a discussion of Legal Realism see, for example, Fisher et al. (1993). For Legal Realism and its connection to the role of the therapeutic judge, see Perlman (2010).

  3. 3.

    For example, the ADR and the TJ movements that will be described below in this chapter.

  4. 4.

    For example, in the United States, various amendments to Rule 16 of the Federal Rules of Civil Procedure, which enable the judge to hold preliminary hearings in order to examine whether the parties are willing to settle the dispute by way of compromise or should be referred to alternative means of dispute resolution.

  5. 5.

    One of the factors contributing to shaping the judge’s role relates to technological developments, see Tidmarch (1992), Katsh and Rabinovich-Einy (2017, 149–169).

  6. 6.

    For a comprehensive survey of the non-adversarial approach and its implementation in the legal system, see King et al. (2014).

  7. 7.

    See, for example, the Alternative Dispute Resolution Act of 1998 (ADR) 28 U.S.C.

  8. 8.

    For an example of how proceedings adopting the collaborative approach have become entrenched in the court system, see Brazil (1990).

  9. 9.

    For the shifting role of lawyers who have adopted the collaborative approach to resolving problems when representing their clients, see, for example, Menkel-Meadow (1999), Macfarlane (2008).

  10. 10.

    A paradigm in the sense of a full complex of opinions, values and techniques shared by the members of a known community: See Kuhn (1962).

  11. 11.

    Maintaining distance and judicial passivity are designed to ensure the control element of the parties to an adversarial process and allow each party an equal opportunity to raise arguments, be heard and influence the decision of the judge. Martin Shapiro asserted that judicial neutrality resembles an isosceles triangle in which the judge stands at the apex of the triangle and the parties are equidistant from him in terms of the issue at hand and the judicial treatment thereof, see: Shapiro (1986, 1–2).

  12. 12.

    Starting from the Legal Realism movement: Shapiro (1986, 2).

  13. 13.

    For a proposal as to six organizing principles for conflict resolution, relevant also to the ADR movement, see Alberstein (2015, 887–892).

  14. 14.

    Riskin used the terms “narrow” and “broad” to describe a mediator’s orientation when framing the problem presented by the parties. The term “narrow” is comparative reference to a possible solution within a multi-stage adversarial judicial process whereas “broad” refers to other issues that are taken into account such as a business interest in maintaining reputation. Therefore, the broad orientation of a mediator can lead to a mediation process similar to the judicial settlement process using the wide model with its reference to personal and social interests: see Riskin (1996, 19, 22).

  15. 15.

    In this special procedure the judge holds meetings with the parties in order to clarify the dispute and tries to settle it by means of an agreed solution. The content of the hearings is confidential. The judicial proceeding in fact emulates a mediation proceeding under the pragmatic model and strives to enjoy the advantages of dispute resolution using this collaborative process: Parness (2006), Robinson (2009).

  16. 16.

    Studies performed in 1970 revealed different judicial approaches to the functions entailed by the judge’s role which included determination of conflicts, offering interpretations, supervision of the courts and more: Glick (1971). Only two decades later did it become apparent that the perception of the judicial role included a new function, namely, bringing the dispute to an end through agreement. Numerous judges state that one of their chief tasks is to act as catalysts for the creation of agreements between the parties and note their preference to perform their functions using a settlement-oriented approach: Edgar (1995), Robinson (2006).

  17. 17.

    For example, in Australia, see Scott (2008); for data relating to the United States, see Langbein (2012).

  18. 18.

    For the relational concept and its characteristics, see for example, Bush and Folger (2005, 59–62). For the relational concept which is supported by therapeutic jurisprudence in so far as concerns the shaping of the functions of the contemporary lawyer, see Steir (1992). For rules oriented conduct compared to relational oriented conduct of litigants, see Conley and O’Barr (1990).

  19. 19.

    For the change in paradigm offered by therapeutic jurisprudence, see Perlman (2010, 419–421), Stobbs (2013).

  20. 20.

    Section 79 A–D of the Israeli Courts [Consolidated Version] Law 1984.

  21. 21.

    This in addition to the function of dispute resolution in accordance with the screening proposed by Smith (1991).

  22. 22.

    See, for example, Sourdin (2011).

  23. 23.

    This conclusion ensues from a number of studies prepared on the basis of observations of judicial proceedings in Israel. For example, a 2008 study within the framework of a mediation clinic operated by Bar Ilan University, see the study report of the therapeutic jurisprudence team under the guidance of Karni Perlman, Clinic Supervisor Dr. Michal Alberstein; and the observation study within the framework of the Non-adversarial and Therapeutic Justice Center in the College of Management Academic Studies 2017.

  24. 24.

    For lawyers’ preferences and satisfaction with the process, see Resnik (2002), Wissler (2011).

  25. 25.

    This for example, was the recommendation put forward by the Ombudsman of the Israeli Judiciary in an opinion dealing with settlement judging, See Ombudsman of the Israeli Judiciary (2004).

  26. 26.

    This practice was described by Robinson (2012a, 130). Robinson drew a distinction between one adjudicative style which he defined as “problem solving” and another adjudicative style which he called the “directive approach”. The former style is consistent with the wide model of settlement adjudication whereas the latter is more compatible with the narrow model of settlement adjudication: Robinson (2009, 129). Moreover the problem solving approach is consistent with a facilitative mediation style whereas the directive approach is more compatible with an evaluative mediation approach, according to the types proposed by Riskin (1996).

  27. 27.

    This conception accords the therapeutic judge the importance of a social leader: See King (2008).

  28. 28.

    Relating to the famous question posed by Jerome Frank (1931): “Are Judges Human?”.

  29. 29.

    This power discrepancy was discussed by Galanter (1974).

  30. 30.

    Tyler’s studies have shown that the more the parties experience the decision making process as being fair, the more the results are considered just and the greater the sense of obligation to uphold and implement the results: Tyler (2006). For the success in implementing rules formulated by agreement, in contrast to rules forced on medical institutions, see Dubler and Liebman (2004, 217–218).

  31. 31.

    With regard to the concern relating to the potential decline of common law, it would seem that this issue does not impact the question of the substance of the settlement adjudication model but only its actual application and scope within the system. This concern may be met, inter alia, by the establishment of a mechanism for channeling disputes within the court system that would have the necessary time resources and knowledge to distinguish between disputes of legal and social significance best dealt with in an open public process and decided in a detailed judgment that would be published and possibly form a binding precedent, and other types of disputes conducted in a more confidential manner. This issue falls outside the scope of this chapter which deals with the choice of settlement adjudication models.

  32. 32.

    For some of these concerns, see Auerbach (1983).

  33. 33.

    The concerns raised, for example, in relation to possible harm to women’s rights in the event of a forced mediation in custody proceedings: See Grillo (1991).

  34. 34.

    Although there are those who consider that it is the very knowledge that most judicial proceedings are not conducted in a full multi-stage adjudication process that may actually lead to increased demand for mediation or other alternative proceedings outside the courts: Kovach (2005).

  35. 35.

    For common judicial techniques designed to ensure compliance with judicial ethics when conducting settlement processes, see Robinson (2012b).

  36. 36.

    For the importance of gathering and processing information and using technology within the framework of the court system, see Katsh and Rabinovich-Einy (2017, 149–169).

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  1. College of Management Academic Studies, Rishon Lezion, Israel

    Karni Perlman

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  1. Newcastle Law School, University of Newcastle Australia, Newcastle, New South Wales, Australia

    Tania Sourdin

  2. Athabasca University , Edmonton, Alberta, Canada

    Archie Zariski

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Perlman, K. (2018). Settlement Adjudication and Judicial Responsiveness: The Choice Between a Wide and a Narrow Model. In: Sourdin, T., Zariski, A. (eds) The Responsive Judge. Ius Gentium: Comparative Perspectives on Law and Justice, vol 67. Springer, Singapore. https://doi.org/10.1007/978-981-13-1023-2_3

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