Saturday, February 9, 2013
David B. Wexler (pictured) and Michael D. Jones (University of Puerto Rico - School of Law and Phoenix School of Law) have posted Employing the 'Last Best Offer' Approach in Criminal Settlement Conferences: The Therapeutic Application of an Arbitration Technique in Judicial Mediation (Phoenix Law Review, Vol. 6, 2013) on SSRN. Here is the abstract:
This brief essay, co-authored by a legal academic and by an experienced trial judge-turned-academic, looks at a state criminal procedure rule allowing for "criminal settlement conferences." Such conferences, not universally recognized, are basically a form of judicial mediation. This essay shows how the criminal settlement conference procedure can be improved in its implementation by infusing it with judicial practices and techniques of therapeutic jurisprudence (TJ), techniques one of the authors has already used in conferences at which he has presided. Here, the essay goes a step beyond and proposes, with the full consent of the participants, the therapeutic use of an arbitration technique -- the "last best offer" (LBO) approach -- to motivate the parties (defendant, victim, and state) better to see and appreciate all the positions involved -- and to increase the chances of an agreed-upon settlement. The essay closes with a recommendation that other jurisdictions consider the adoption of the legal structure permitting such conferences and that such conferences be implemented with a robust use of therapeutic techniques, including the LBO approach.