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Employing the 'Last Best Offer' Approach in Criminal Settlement Conferences: The Therapeutic Application of an Arbitration Technique in Judicial Mediation

6 Phoenix Law Review 843 (2013)

Arizona Legal Studies Discussion Paper No. 13-04

14 Pages Posted: 1 Feb 2013 Last revised: 19 Dec 2013

David B. Wexler

University of Puerto Rico - School of Law; University of Arizona James E. Rogers College of Law

Michael D. Jones

Arizona Summit Law School

Date Written: December 18, 2013

Abstract

This brief essay, co-authored by a legal academic and by an experienced trial judge-turned-academic, looks at a state criminal procedure rule allowing for "criminal settlement conferences." Such conferences, not universally recognized, are basically a form of judicial mediation. This essay shows how the criminal settlement conference procedure can be improved in its implementation by infusing it with judicial practices and techniques of therapeutic jurisprudence (TJ), techniques one of the authors has already used in conferences at which he has presided. Here, the essay goes a step beyond and proposes, with the full consent of the participants, the therapeutic use of an arbitration technique -- the "last best offer" (LBO) approach -- to motivate the parties (defendant, victim, and state) better to see and appreciate all the positions involved -- and to increase the chances of an agreed-upon settlement. The essay closes with a recommendation that other jurisdictions consider the adoption of the legal structure permitting such conferences and that such conferences be implemented with a robust use of therapeutic techniques, including the LBO approach.

Keywords: therapeutic jurisprudence, restorative justice, mediation, judicial mediation, plea bargaining, plea negotiation, sentencing, courts, criminal procedure, alternative dispute resolution, last best offer, arbitration, negotiation

Suggested Citation

Wexler, David B. and Jones, Michael D., Employing the 'Last Best Offer' Approach in Criminal Settlement Conferences: The Therapeutic Application of an Arbitration Technique in Judicial Mediation (December 18, 2013). 6 Phoenix Law Review 843 (2013); Arizona Legal Studies Discussion Paper No. 13-04. Available at SSRN: https://ssrn.com/abstract=2208050

David B. Wexler (Contact Author)

University of Puerto Rico - School of Law ( email )

PO Box 23349
San Juan.PR, AZ 00931
Puerto Rico
787-565-1625 (Phone)

HOME PAGE: https://law.arizona.edu/david-b-wexler

University of Arizona James E. Rogers College of Law

P.O. Box 210176
Tucson, AZ 85721-0176
United States
787-565-1625 (Phone)

HOME PAGE: https://law.arizona.edu/david-b-wexler

Michael D. Jones

Arizona Summit Law School ( email )

One North Central Ave.
14th Floor
Phoenix, AZ 85004-4414
United States

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