The Unintended Consequence of Settlement Fever and the Rule of Law

Abstract

Welcome to the final column of a three-part series about how settlement fever has influenced our justice system as it evolves into settlement-centric culture.2 This column will focus on how the rule of law, once touted as the primary benchmark of justice, has now taken a secondary role to private ordering when shaping some negotiated and mediated settlements.

This settlement-centric justice focus has not occurred in a justice vacuum. Rather, three factors have influenced this change. First, courts have been increasingly overwhelmed with swelling case dockets and shrinking court budgets, making them more receptive to processes that efficiently
resolve cases and spare judicial resources. Second, litigants themselves have been demanding efficient and affordable paths to achieving justice. Third, our broader society in which our legal system is embedded reflects a culture where efficiency has become a priority. How have these changes affected the role of the rule of law in our settlement- centric justice system?

Keywords: settlement, justice, negotiations, mediation, rule of law