Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which it claims are absolute, may be wholly or partially discredited by the court. Furthermore, litigation merely shifts the burden of negotiation to judges. I distinguish two types of negotiation, bargaining and moral deliberation, and argue that both should be viewed as legitimate alternatives to litigation for processing disputes involving deep moral disagreement. Deliberative dispute resolution processes present important opportunities for democratic participation, and settlements resulting from them may benefit both the parties and society in ways that litigation cannot. Even where parties are incapable of engaging in genuine moral deliberation, however, settlement for strategic reasons sometimes may be a sensible alternative for parties to a significant case, and should not invite scorn. Litigation and negotiation are complementary, mutually reinforcing social processes, and each has a legitimate role to play in our nation's moral discourse and the evolution of social norms.
Jeffrey R. Seul,
Settling Significant Cases,
79 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol79/iss3/3