Settlement as Civil Justice
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00289 |
Settlement as Civil Justice
Simon Roberts*
Right across the common law world, what appear to be large-scale changes in state
management of civil disputes have become visible over at least two decades. At the
heart of these changes lies a growing recognition of ‘settlement’ as an approved,
privileged objective of civil justice. The courts present themselves not just as
agencies offering judgment but as sponsors of negotiated agreement. In this
jurisdiction these changes first appeared as spontaneous initiatives within the
judiciary. They are now drawn together and given official blessing through the
Civil Procedure Rules which came into force in April 1999. They take on a
recognizably different shape in the earlier, but now embattled, Family Law Act
1996. How should we understand these changes? Do they imply altered relations
between lawyers and their clients, or do they represent a relatively discrete
reordering of professional practice? Does this move by government into the
formerly ‘private’ world of negotiated agreement reflect a fundamental change in
the mode of government of the kind being forecast at the beginning of the 1980s?1
Historically, government has devoted virtually its entire investment in dispute
management to the provision of ‘courts’. While any generalization about what
English courts have done needs to be advanced cautiously, these agencies have on
the whole conceived their role quite narrowly, as one of providing trial and
judgment. Pre-trial interventions have been largely devoted to making sure the
landscape does not change too much before trial, otherwise leaving the parties to
proceed towards trial at their own pace. While on the surface a clear line appeared
to be drawn by these arrangements between negotiated agreement and authoritative
third-party determination, it is a commonplace that beneath the surface lawyers
have conceptualized virtually their entire role in dispute settlement as ‘litigation’.
Consequently, they have come to use the framework provided by civil procedure as
the primary arena for their attempts to ‘settle’.2So these two apparently different
modes of decision-making have come to share a single procedural route, one
historically devised for the safe achievement of judgment.3Public recognition that
the sponsorship of settlement was an explicit, official objective of the courts came
relatively late in the day. Statements of this aspiration appear in the Heilbron/
Hodge Report of 19834and then in the Interim version of the ‘Woolf’ Report. In
the latter, judicial ‘case management’ is prescribed and its overall purpose
identified as ‘to encourage settlement of disputes at the earliest appropriate stage;
and, where trial is unavoidable, to ensure that cases proceed as quickly as possible
ßThe Modern Law Review Limited 2000 (MLR 63:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 739
* London School of Economics.
1 See, for example, B. de Sousa Santos, ‘Law and Community: The Changing Nature of State Power in
Late Capitalism’ (1980) 8 International Journal of the Sociology of Law 379; G. Teubner,
‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law and Society Review 239.
2 M. Galanter and M. Cahill, ‘Most Cases Settle: Judicial Promotion and Regulation of Settlements’
(1994) 46 Stanford Law Review 1339.
3 S. Roberts, ‘The Path of Negotiations’ in M. Freeman (ed) Current Legal Problems 1996 (Oxford:
OUP, 1996).
4Civil Justice on Trial – The Case for Change (London, 1993).
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