“To be against settlement is not to urge that parties be ‘forced’ to litigate [...] To be against settlement is only to suggest that when the parties settle, society gets less than what appears, and for a price it does not know it is paying. Parties might settle while leaving justice undone [...] To settle for something means to accept less than some ideal.”
“There is, of course, sometimes a value to avoidance [...] to society, which sometimes thrives by masking its basic contradictions. [...] But when one sees injustices that cry out for correction [...] the value of avoidance diminishes and the agony of judgment becomes necessary. Someone has to confront the betrayal of our deepest ideals and be prepared to turn the world upside down to bring those ideals to fruition.”
~ Owen Fiss, “Against Settlement” (1984) 93 Yale Law Journal 1073, at 1085-87. (pdf here.)
This month, we are studying alternative dispute resolution (ADR) – a process that focuses on settlement, compromise and “peace” as the priorities of dispute resolution. I believe there is definitely a place for cooperative approaches (for example, in commercial negotiations between equal parties, and in internal disputes between members of a team). But ADR has no place in disputes between unequal parties, or where there is exploitation, or harm has been done by one party to another. Would you recommend a co-operative negotiation “to resolve the dispute” between a woman and her violent husband? Would you feel that it was appropriate to “divvy up the pie” equally between a robber and the person robbed? What about a government policy rooted in systemic racism? Should “the government” and “racialized people” sit down and find a happy middle ground, or should the court be able to judge “illegal” that which is illegal? Why do we expect “compromise” from working people who wish to enforce the provisions of a contract with their employer, or to demand a minimum decent standard which allows them to thrive and grow in the work on which they depend completely?
