Over the last twenty years, there has been a movement among American trial judges to make the facilitation of pre-trial settlement part of their role. Innovative judges are devising techniques and procedures designed to encourage litigants who file suits in their courts to settle before trial, and in the process they are subtly redefining what it means to be a judge. Although academics and the legal community were instrumental in developing and popularizing the theory of alternative dispute resolution, there has been mixed reaction regarding the enthusiasm with which judges have embraced the idea that they have a role in promoting settlement. To date, there have been few scientific studies of civil settlement. We know that settlement negotiations take place and usually succeed, but we know little about how or why they succeed. This project will consider the implications of this movement and in particular will study the judicial mediation of cases brought by individuals seeking remedies against institutions for alleged violation of statutory, common-law, or constitutional rights. The goals of the research are to describe the steps involved in judicial mediation, to map the types of arguments raised and pursued in this form of dispute resolution, and to analyze the transformation of contentions and positions that occurs in the process of reaching settlement in public-law cases. Twenty-five cases will be intensively studied using observation, recording of settlement-conference sessions, pre and post conference interviews with all participants in the settlement effort, and a set of follow-up interviews with public-interest lawyers designed to elucidate further the perspective of litigators on findings derived from the case material. Facilitation of settlement in civil litigation is an activity of American trial judges that is growing in significance. This research will lay a foundation for the development of empirically-based theory about informal processes for resolving disputes. Not only will it offer a theory of the course of judicial mediation, but a very significant goal of the research is to determine how disputes are resolved and rights fare in judge-hosted settlement discussions.
