Justices Seek Justice, Not Peace*

Just 3 years after Fisher & Ury’s Getting to Yes started us on a journey most readers of this blog are yet to complete, Yale University’s Owen Fiss delivered his powerful 1984 polemic Against Settlement (I’m far too promiscuous with my must reads but this is a must, must read).

In it he argued that settlement was the ‘civil analogue of plea bargaining’.

Fiss decried the imbalances of power that he saw inherent in the mediation process as well as the absence of authoritative consent, the lack of foundation for continuing judicial involvement and “justice rather than peace”

In hindsight he’s way off the mark and whilst there are pressing issues in our field these, in my view, are not some of them; but it’s an impressive piece and Fiss made a beeline for some of the very matters that would preoccupy us for the next 25 years.

And I mention it for those who want weekend reading on the back of my recent post linking to Gillian Hadfield’s Framing the Choice between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund and the thoughtful comments posted there.

But these are big issues and hard to deal with in a blog posting.

For completeness however, I also mention Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement.

* Fiss, The Law As It Could Be
Hat tip to Tony Willis

                        author

Geoff Sharp

Geoff Sharp is a Commercial Mediator from Wellington, New Zealand. Geoff works in the Asia Pacific region, including New Zealand, Malaysia, Thailand and Pacific Islands. He is a mediator resolving business problems. He is a fellow of the International Academy of Mediators and mediates complex and hotly debated litigation covering… MORE >

Featured Mediators

ad
View all

Read these next

Category

McAdoo, Barbara: Lack of Research – Video

Barbara McAdoo observes the little research that has compared parties' settlements and experience from mediation to parties' settlements through other processes.

By Barbara McAdoo
Category

The State of Gender Equity in ADR

JAMS ADR Blog by Chris PooleIn a recent opinion piece in the New York Times Sunday Review, writer Stephanie Coontz assessed the state of gender equity in the legal profession....

By Carol Cope
Category

Mandatory Course on Mediation for Law Students in India

  The Bar Council of India (“BCI”) is a statutory body established under the Advocates Act (1961) for promoting legal education and setting standards for institutions that are imparting legal...

By Pitamber Yadav

Find a Mediator

X
X
X