WHEN PUSH COMES TO SHOVE: Putting an end to coercive judicial settlement practices

No place for coercion in judicial settlement practicesI depend upon the kindness of strangers for copies of the American Bar Association‘s ABA Journal. (I blame this on the Internet—the world’s greatest library—which has almost succeeded in making magazine subscriptions obsolete—and the reason why I tend to subscribe to few printed periodicals. After all, if you’re patient, sooner or later everything finds its way to the web.)

So it was only today that I saw last month’s issue of the ABA Journal, which my business partner was good enough to leave on my desk this morning. An article by Molly McDonough entitled “Meddling in Settling” caught my eye, since it discussed an issue I had blogged about a couple of weeks ago: the growing (and disturbing) trend among judges to use strong-arm tactics to coerce litigants to settle, including the imposition of sanctions on parties who fail or refuse to settle their cases through mediation. This practice has understandably caused mediators and other ADR professionals much consternation, since it undermines confidence in mediation and makes settlement negotiations far less attractive to litigants. Coercion and mediation simply do not mix.

Recognizing that this is a problem in urgent need of a remedy, the ABA has taken steps to evaluate these and other issues and to propose recommendations for addressing them. Available for downloading in PDF format at the ABA’s web site are two documents on this topic which are well worth perusing.

First, there is the report of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct, which was released just 11 days ago. The report recommends substantive changes to the ABA Model Code of Judicial Conduct, and includes a preliminary draft of the Code.

The proposed revisions to the Model Code do address the issue of coercive settlement practices by judges. For example, the comments to Rule 2.09, Ensuring the Right to Be Heard, urge a judge to

be careful that efforts to further settlement not undermine a party’s right to be heard according to law. A judge may therefore encourage parties to a proceeding and their lawyers to settle matters in a dispute but should not act in a manner that coerces a party into settlement.

(Emphasis added.)

The comment period for the preliminary draft remains open until September 15, 2005. Comments may be submitted to Debra D. Taylor at the American Bar Association at debrataylor [at] staff.abanet.org.

Secondly, there is a well-researched paper authored by the Honorable John C. Cratsley, a justice of the Massachusetts Superior Court and a lecturer at Harvard Law School, on “Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet”. In this paper Judge Cratsley explores the ethical dimensions of judicial involvement in settlement, discusses the role of ADR in the courts, and explores the reasons why it’s time for the Model Code of Judicial Conduct to be revised. Judge Cratsley also supports mandatory training for judges undertaking mediation—the same kind of training that statutes or court rules require of neutrals engaged in court-connected dispute resolution.

This is a radical proposal but one which many in the ADR field would undoubtedly embrace. (Unfortunately, however, the preliminary draft of the Model Code posted at the ABA web site does not contain Judge Cratsley’s proposed provisions for mandatory ADR training for judges.)

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