Friday, August 21, 2009
Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted The Defense Attorney as Mediator in Plea Bargains (Pepperdine Dispute Resolution Law Journal, Vol. 9, No. 3, 2009) on SSRN. Here is the abstract:
In this article, it will be argued that defense counsel’s function in plea bargains is identical to that of a mediator, seeking to reconcile the positions of the defendant and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the end of the 1970s. An analysis of plea bargains in the Western world as part of the broader concept of ADR actually shows that it is the defense attorney, rather than the court or the other parties to the issue, who functions as mediator, assessing the interests of the parties caught up in the dispute. This also gives expression to the philosophy of privatization upon which mediation is based. The tactics of influence and use of an impression of force employed by the defense attorney in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations, and numerous other parameters are identical to those employed by the mediator. As a result, if indeed the mediation function of the defense attorney in plea bargaining may be recognized, it will be argued that this has implications rooted in applying the accumulated experience of the mediator in private litigation to plea bargains in criminal cases.