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Justice and Settlement

Alexander H. Williams III

  (Adapted from article written, while still on the Bench,

for the Los Angeles Superior Court Judges' Magazine, Gavel to Gavel, in 2008)



The topic assigned by the Gavel to Gavel editors for this edition and this article has caused me to think (a minor miracle in itself)!

I have always approached case management conferences and mandatory settlement conferences with the view that a fair, just settlement is whatever the parties want it to be or decide it will be.

After all, it is their choice:  settlement or trial, Deal or Ordeal!

After further reflection in writing this article, I feel the same way, with a couple of clarifications/qualifications discussed below.

Let’s begin at the beginning – the overall role of courts and judges.

“Equal Justice Under Law.”

These words on the pediment over the entrance to the United States Supreme Court define succinctly the mission of courts and judges.  Judges are the stewards of the legal process that is intended to produce equal justice.  Every judicial proceeding and every judicial decision is directed toward that goal.

But the settlement process is not a judicial proceeding in the usual sense.  Indeed, while judges are required to conduct hearings and trials and to make decisions, no judge is obligated to conduct or order a settlement conference.  Furthermore, a choice by the parties to settle is not a judicial decision.  So where does settlement fit into the justice process?

Is there justice in settlement?  Is justice served by settlement?

The answer, as it is for so many legal questions, is:  “It depends!”

Let’s examine some basic principles.

The Dispute Belongs to the Parties.

Every legal case begins with a dispute.

While judges control the judicial process, the disputes out of which grow the cases that come into that process are owned by the parties.  Our cases arise out of their conflicts.

The parties choose to bring the dispute into the legal system.  They may choose to take it out by resolving it as they see fit.  They can define their own justice (or, as the case may be, decide how much justice they can afford).

Settlement has Value for the Parties.

As we know, settlement can save the parties some unpleasant burdens of trial and can give the parties some values unattainable at trial.

With a fair settlement, the parties can

-         Save Time                                           

-         Save Cost

-         Save Risk

-         Save Dignity

-         Save Stress

-         Save Relationships

and they also can

-         Get Choice

-         Get Control

-         Get Certainty

-         Get Creativity

-         Get Confidentiality

-         Get Closure

I think each of these benefits can be seen as a component of justice.

Settlement has Value for the Courts.

Settlements serve the interests of the parties in many ways as noted above.  But fair settlements also serve the interests of the court.

Settlements promote judicial economy and access to justice.  Sometimes lawyers’ eyes glaze over when we speak of judicial economy, as if it had to do with making more time for judges to play golf!  But judicial economy is not about judicial leisure, it is about access to justice.  If all the readers of this publication have cases pending in a certain court, does each have a stake in the resolution of the other cases?  Of course.  The more other pending cases resolve, the faster one’s own case can be addressed.  Furthermore, a settlement conference usually can be, and usually should be, conducted much earlier than a trial.  So settlements enhance access to justice.

Settlements also foster public confidence in and satisfaction with the courts.  Parties leaving a successful settlement conference invariably have better collective feelings about the court system than those leaving after a trial.  “Win-win” as opposed to “win-lose” results in the court house, in my opinion, enhance public feelings about the judicial system.

The Role of the Courts.

While settlement has value to the parties and to the courts, should the courts be concerned with and involved in settlement?

As noted above, the role of the courts is to administer “equal justice under law” in the cases that arise out of the parties’ disputes.  But what is the role of the courts in settlement, in the wide spectrum of processes like arbitration, mediation, settlement conferences, etc. collectively known as Alternative (or Appropriate) Dispute Resolution (ADR)?  What, if anything, should courts and judges do to help parties resolve their disputes?

Should courts:

encourage ADR?

mandate ADR?

provide ADR?

conduct ADR?

While the answers to these questions vary widely among legal systems both within the United States and abroad, in California the answer to all these questions is clearly “yes.”  We encourage ADR in case management conferences.  We mandate ADR in cases where we can and choose to order a case to mediation or to a mandatory settlement conference.  We provide ADR through the array of court-connected neutral panels and processes.  And we conduct ADR in judicial settlement conferences.

Decades ago, Harvard Law Professor Frank E. A. Sander coined the phrase “Multi-Door Courthouse” to conceptualize a legal system that affords litigants choices, including but not limited to trial, for the resolution of their cases.  That is, in effect, the system that has evolved in the courts in California and especially in Los Angeles over the past twenty years.

Is this justice?  Again, it depends.

The First Rule: Do No Harm.

While the essence of the settlement process is empowering and assisting the parties and counsel to choose resolution on their own terms, as judges we cannot adopt a purely laissez faire attitude toward settlement.  While I do not think it is the role of the court, in the courtroom or in settlement conference, to help a weaker party compensate for the superior power of the other side, there are limits.

I recall an MSC in a collections case with a credit card company plaintiff and a pro per defendant.  She wanted to resolve the matter in good faith, and probably would have made a deal with the company.  I am generally reluctant to work with pro pers in settlement conferences for a number of reasons.  In this case I was especially leery because, while the defendant did not have counsel in this case, she was on the verge of declaring bankruptcy and did have bankruptcy counsel.  The plaintiff knew this.  I do not practice law, and I do not and did not give legal advice.  But I told both sides that I would not proceed with the MSC unless and until the defendant consulted with bankruptcy counsel.  I knew that the court, in the form of the settlement judge, should not foster a deal that might seriously prejudice one side and ran the risk of violating bankruptcy law.

No amount of enthusiasm for settlement should ever cause us to forget that we are judges.

A Coerced Settlement is not Justice.

Judges make decisions that impose results on the parties.  Such decisions must be rendered in compliance with due process of law, and the parties receive a result which is subject to review.

On the other hand, if a judge coerces a settlement, the parties get a result that is not achieved by due process and is not subject to review.

Party self determination is one of the cardinal precepts of settlement.  Judges must respect it.  It is a legal and a practical reality.  I really started to have success in resolution when I embraced the importance of voluntariness in settlement and focused on getting the best result for the parties instead of on just getting the case off the calendar.  I tell myself:  “Do it for them – it is not about you!”

The Parties can Take the Dispute to Funny Places.

Once, in a simple business dispute, it became clear that the parties not only wanted to avoid trial, they also wanted to keep on doing business together.  As noted above, saving relationships can be a major plus of settlement.  We progressed quickly toward settlement.  But we could not get to the final number; neither side wanted to take the last step or agree to the other side’s last step.  In mock frustration, I said jokingly:  “What do you want me to do, flip a coin?”  To my surprise, both sides immediately and enthusiastically said “Yes!”  A quick flash on how it might look in the Daily Journal persuaded me that I should not do the flipping.  I suggested a mini-negotiation about the flipping process.  The parties came up with a plan to have one side flip it and the other side call it.  Amid much laughter and back slapping, the case was thus resolved by the parties, who left the court together with a good deal and a better relationship.

It is not Always Only About Money.

Money is almost always involved in settlement.  However, it is often not the only thing that matters.  Often resolution hinges on identifying needs of the parties that are not addressed by money and may well go unaddressed by trial.

I had a case where a young man had suffered a medical procedure gone wrong at a prominent hospital.  He had recovered well and was ready to settle and move on with his life.  But his mother could not get past her anger at what had happened to her son.  It was clear that the case would not settle until we addressed this problem.  I persuaded both sides to sit together in the jury room and just listen to the mother speak her mind.  As she did, one could see her anger slowly subside.  Poignantly, when the mother finished, a doctor defendant sua sponte said: “I understand how you feel, and I am sorry that this happened.”  The case then easily settled.  The mother’s anger would not have been relevant at trial and would not have been addressed by a monetary settlement alone.  But it was assuaged in the settlement conference.  That is the magic of the settlement process.

Some Cases Need to be Tried.

Settlement is not always the best result.  Sometimes it is just not feasible.  One side is right and one side is wrong, or one side is reasonable and one side is not.  Reasonable people can reasonably disagree about the value of a lawsuit.

Sometimes a party just cannot, or does not want to, make a choice about resolution.  I had a court trial involving a family dispute.  It was a tough and sad case.  On the record during trial, I offered to recess the trial and to find a good settlement judge to try to help them resolve the matter.  One of the parties said:  “Your Honor, I have talked to so many people about this matter.  I just want someone I respect to make a decision.”  In this one simple statement, he graciously reminded me of my duty as a judge – to hear impartially and decide fairly.  After all, the Constitutionally provided dispute resolution mechanism is … a fair trial!

A Truly Voluntary Settlement is not only Justice; it is the Best Justice!

For me, the above considerations lead to a simple conclusion:  a settlement that is the product of a process that respects the rights of the parties to choose and does no harm is indeed justice.  The parties make the deal, and they own it.  It is not imposed upon them by the court.  Instead, it is facilitated by the court.

Judicial facilitation of settlement, by encouraging resolution, affording ADR options and, for those judges so inclined, conducting settlement conferences, is in the highest traditions of justice.

Perhaps that is why, as I look back on my 24 years on our court, my favorite memories almost all involve settlement work.  I will always be glad that I became involved in alternative dispute resolution and grateful to our leaders who allowed me to spend so much time making peace.

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