Nevada Law Journal
This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding the magistrate judges’ particular role in settlement and the procedural, ethical and dispute resolution-related contexts within which judicial settlement fits, the Article turns in Part III to an overview of the procedural justice literature and then, in Part IV, returns to the three scenarios described supra to consider whether parties are likely to perceive both the adjudicative and settlement phases as procedurally fair. This analysis reveals the need for structural changes, including enhanced clarity regarding the scope and limits of confidentiality, strict limits on magistrate judges’ use of ex parte meetings, the need to insert a second opportunity for blind consent after a magistrate judge conducts a settlement session, and the need to provide magistrate judges with the opportunity to receive feedback and engage in self-reflection regarding the procedural fairness of their settlement efforts. In Part V, the Article reviews mechanisms currently used to provide judges with opportunities for feedback and self-reflection, and introduces a new tool that focuses particularly on the procedural justice of settlement sessions.
Nancy A. Welsh,
Magistrate Judges, Settlement, and Procedural Justice,
Available at: https://scholarship.law.tamu.edu/facscholar/940