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Cardozo Journal of Conflict Resolution

Abstract

This Note proposes that courts should recognize a settlementnegotiation privilege because it will incentivize parties to settle. Settling disputes is beneficial to the judicial system as it is more efficient and effective at resolving disputes than trying cases. Recognizing a settlement-negotiation privilege will increase the number of settlements by avoiding the free-rider problem that the Federal Circuit's approach in In re MSTG will create. Similarly, creating a settlement-negotiation privilege will avoid the uncertainty caused by not recognizing a privilege or requiring heightened standards for discovery. The confidentiality and certainty of a settlement-negotiation privilege will encourage parties to settle as well as eliminate the redundant costs parties use to set up an artificial mediation framework to ensure their communications are privileged. This Note will also attempt to reconcile In re MSTG with the Note's proposal and criticizes the Federal Circuit's broad holding refusing to recognize a settlement-negotiation privilege. Finally, this Note will argue that requiring third parties to meet a heightened standard to discover settlement negotiations is impractical and inefficient.

Part I of this Note provides background on the history and power of courts to recognize new privileges. This section also discusses settlement negotiations and FRE 408, which governs the admissibility of compromise offers and negotiations. Part II explores the Federal Circuit's In re MSTG opinion as well as how other circuit courts, district courts, and England have dealt with the discoverability of settlement negotiations. This section also analyzes the various heightened showings that district courts require for discoverability. Part III proposes that all courts should recognize a settlement-negotiation privilege and explains why the alternative approaches are not viable options.

Disciplines

Dispute Resolution and Arbitration | Evidence | Intellectual Property Law | Law

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