Against Settlement is the title of a paper written by Owen Fiss, a law professor at Yale which was published in 1984. There is a link to it available on the Yale law school website. 

Against Settlement is a paper that I find quite challenging. When I was doing my masters in dispute resolution, it felt like Against Settlement was relevant in almost every subject that I did. So, why did I find it challenging?

Most matters settle

Despite my chosen career as a litigation lawyer, I actually don’t like conflict. I have always believed that it was almost invariably in the best interests of my clients to reach a settlement.

Litigation is expensive and the outcome is uncertain. It is my view that a compromised settlement is effectively the price of buyng certainty. I am not alone. The vast majority of civil cases that are commenced in the NSW Supreme Court are settled before they go to trial. The last time I looked the settlement rate was around 90%. This high rate is encouraged by the case management practices of the Court and by the use of court annexed mediation.

All that was before I read Against Settlement.

Litigation’s public function

Fiss says that litigation serves a public function by allowing courts to interpret, develop and enforce laws in ways that are a reflection on society. He argues that private agreements, like settlements, do not contribute to the development of legal precedents or the public articulation of rights and responsibilities. The opportunity to develop and clarify the law is lost.  Instead of serving as a venue for the adjudication of rights and the development of legal doctrines, courts become mere facilitators of private agreements.

In fact, he argues that settlements actually undermine the judicial system and that they basically prioritize efficiency over substantive justice. Perhaps it was different in 1984, but certainly today it is fairly plain to see that the court system is under resourced. This problem is worse in some areas (e.g. family law) than in others. If every matter were to go to trial, there would be long (or even longer) delays in the system which would itself be an injustice to the parties.

Fiss also argues that settlements often result in outcomes that favour powerful parties at the expense of weaker ones. This is really something that I hadn’t really thought about. It’s true that there is no strict procedural fairness in the settlement process. Settlements are usually reached through negotiation and compromise. In contrast, the trial process provides a more structured and transparent means of resolving disputes, with procedural safeguards designed to ensure that all parties have a fair opportunity to present their case and challenge the evidence.

Conclusion

It’s certainly true that Against Settlement has been a very influential and much debated contribution to academic writing. Of course some people agree with him and others say that his ideas are overly idealistic and impractical in the face of the realities of modern litigation. I can see both sides of this argument. For me, I think the take home message is that there is a  tension between efficiency and justice in dispute resolution that we often don’t discuss.

Creative commons acknowledgment for the photograph.