Judicial actions in the courtroom remain for the most part off the record and hard to discern. Moreover, judicial settlement practices in the United States, for example, can take place in judicial chambers, far from the public eye. Thus there is a need for physical presence of researchers in public hearings to understand what judges do today in the age of vanishing trials. Researchers of this study entered courts in London, Florence, and Tel-Aviv. The various judicial conflict resolution practices that emerged in Israel’s most active first-instance court, in Tel-Aviv, provide a new perspective on power in the courtroom, identifying new forms of legitimation and justice developed by judges as they perform their settlement-promoting roles. In addition, we discuss an alternative model, found in the Florence Court, where judges were only recently permitted to use settlement practices. There the judges are supported by interns who screen cases before trial to examine whether they may be appropriate for mediation. In court, judges may offer mediation to the parties and explain their reasoning for doing so but will usually not try to settle the cases themselves. Lastly, we showcase intervention styles that offer new visions for the judicial role.

We propose a typology that accounts for current priorities of legal systems and the main mechanisms through which they dispose of cases.

The proposed typology is the result of a five-year empirical study of legal systems, analyzing data from court dockets, court observations, and interviews with legal actors. The study uncovers: (1) legal systems that have reshaped themselves to place an emphasis on pre-filing, creating disincentives to filing cases and trial while promoting settlement; (2) legal systems that place an emphasis on pretrial, allowing filing of cases but introducing incentives to help cases settle before they reach trial; and (3) legal systems that continue to place an emphasis on trial while allowing other forms of dispute resolution.

We show that each family differs in the aim of civil justice, the function of law, the nature of the judicial role, access to justice, and the institutional function of courts. Moreover, a pre-filing emphasis seems conducive to AI-based dispute resolution that may be developed in the future. The typology allows for a dynamic observation of legal systems as they transition from one family to another, and has implications for legal reforms and harmonization.

This chapter outlines the new landscape of judicial discretion in the settlement era, referring to both critical claims of law and advanced perspectives on conflict resolution. It integrates theoretical claims as to the notion of law and legal formalism together with advanced approaches to conflict resolution. It suggests a new model for judicial discretion and provides a theoretical framework to combine the principles of conflict resolution and law as they pertain to the judicial role. In addition, it shows how judges may exercise their discretion in the courtroom (rather than through a judicial verdict). We then entwine our theories and findings, constructing a training scheme suggested for judges, which integrates conflict resolution perspectives as well as normative and ethical considerations.