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Employing the “last best offer” approach in criminal settlement conferences: The therapeutic application of an arbitration technique in judicial mediation.

Wexler, David B.
June 4, 2015

Source: (2013) Phoenix Law Review. 6:843-855.

This Article’s suggestion grows from the idea of an indicated sentence.
However, to stimulate in each conference participant more thoughtful consideration
of the other participants’ positions, this Article proposes that in appropriate
cases an additional element-borrowed from arbitration-known as the “Last Best Offer” (“LBO”) be used. Having the parties’ full agreement secured
at the beginning of the conference,’ the process would operate as follows:
before announcing the indicated sentence, the conference judge would solicit a
proposed sentence from the state, from the defense, and from the victim. The
judge would then have the opportunity to examine the various proposals, hear
from each interested party and the respective counsel, and ask pointed questions
intended to provide the parties and counsel with a better understanding of
the others’ legal positions, the evidence, and each side’s needs. This discussion
would provide an excellent opportunity for the judge to use-and to encourage
others to use-active listening, empathy, and perhaps confrontation. 14 The discussion
should include, at a minimum, a frank evaluation of all conditions and
consequences of a settlement and guilty plea versus the consequences and likelihood
of a guilty verdict after a trial. Often, these conditions and consequences
are the most important considerations to the parties and their families.(excerpt)


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