Judicial Conflict Resolution (JCR): A New Jurisprudence for an Emerging Judicial Practice
16 Cardozo Journal of Conflict Resolution 879-965 (2015)
20 Pages Posted: 13 Jul 2015 Last revised: 14 Jul 2015
Date Written: July 12, 2015
In the past few decades, the role of judges has changed dramatically, yet its nature has remained largely unexplored. To date, most cases settle or reach plea-bargaining, and the greater part of judges' time is spent on managing cases and encouraging parties to reach consensual solutions. Adjudication based on formal rules is a rare phenomenon which judges mostly avoid. This Article argues that the various Conflict Resolution methods, which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. Theoretically, the Article develops a conflict resolution jurisprudence, which prioritizes consent over coercion as a leading value for the administration of justice. Descriptively, the Article conceptualizes judicial activity in promoting settlement and plea bargaining as Judicial Conflict Resolution (“JCR”) and examines it along the lines of common methods of conflict resolution -- negotiation, mediation, arbitration, dialogue facilitation, problem solving, restorative justice and dispute design. The JCR Perspective suggests that judges are often parties to the negotiation as to whether to adjudicate the legal conflict, third parties in an effort to mediate it, arbitrators as to guiding rules of compromise, as well as facilitators of dialogue, problem solvers and dispute designers. The hybridity of their conflict resolution work is related both to the variety of processes that judges use and to the fact that they are performed in the shadow of authority.
Keywords: JCR, judicial conflict resolution conflict resolution, therapeutic jurisprudence
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