Beyond 'Managerial Judges': Appropriate Roles in Settlement
73 Pages Posted: 25 Aug 2017
Date Written: August 23, 2017
Settlement is prevalent, and crucial to the functioning of the U.S. judicial system. But the pretrial regulatory framework in the courts is largely discretionary, and its emphasis on management does not fully take into account all the consequences of combining settlement with adjudication. The label “managerial judge” does not differentiate between the functions involved in managing a settlement process and the very different role of serving as a settlement neutral. By introducing this distinction, this Article provides a framework for analyzing settlement that focuses on the conflicts between a judge’s role as a neutral in settlement and as a neutral in adjudication.
This Article argues for reform that would prevent judges assigned to a case for pretrial management and trial from serving as the neutral at a settlement conference or judicial mediation. The proposal to separate these roles structurally would address the problems of coercion and partiality that can result from a dual-neutral role, while retaining the contributions of settlement judges. The proposal is informed by the history of judges’ involvement in settlement, and by their increasing reliance on mediation techniques. It draws on principles that are already recognized in some local and state ADR rules and rests on modern understandings of cognitive functioning and decisionmaking that should be incorporated into our thinking about frameworks for settlement.
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