In Praise of Reconciliation: the In-Court Settlement as a Global Outreach for Appropriate Dispute Resolution

Authors

Cesare Cavallini
Stefania Cirillo

Abstract

A sense of crisis in the administration of civil justice is widespread. Whether the typical difficulties faced by many countries unfold in excessive costs and delays, they have stark implications for the effectiveness of the procedural systems and access to justice. Several new institutions evolved to deal with this state of crisis. Amongst them, the judicially-led settlement, which has the peculiarity of being an alternative tool, despite being performed in the courtroom, made inroads worldwide. However, the pro-adjudication rhetoric raised and continue to raise severe qualms of parties’ coercion and judicial partiality resulting from the judge’s dual role as conciliator and decider. This Article deals with the matter by aiming for a triple result. First, it is intended to show how the general trend toward in-court settlement highlights the urgency of embodying a new philosophy of distributive justice in civil procedure at a global level. To this effect, rather than securing only substantive justice, the justice systems need to be devoted to dealing with cases justly, equally, and proportionally. Secondly, it will show how advocating settlement does not necessarily mean an efficiency-based claim. On the contrary, it represents a plea for “justice” by resulting in quality-oriented outcomes. Lastly, drawing from the repository of the Continental European civil procedure rules, it will sketch the proper tools to prevent the judges’ promotion of settlement from flowing into an indirectly forced settlement and negatively impacting their impartiality. The relevant outcomes will show how judicially-led settlement represents, at a global level, a form of appropriate (rather than alternative) dispute resolution method.

Recommended Citation

Cesare Cavallini and Stefania Cirillo, In Praise of Reconciliation: the In-Court Settlement as a Global Outreach for Appropriate Dispute Resolution, 2023 J. Disp. Resol. (2023)
Available at: https://scholarship.law.missouri.edu/jdr/vol2023/iss2/7