Tuesday, December 11, 2012

The range of negotiations.

The Associated Press and the ABA Law Journal have the story of an unusual order to mediate.  Judge Stephen Dunn, an Idaho state court judge, has ordered that the prosecution and the defendant to mediate a death penalty case.

This seems sort of strange given that the first move by each side in a mediation is usually a variation of "give us what we would get if we win."  Indeed, the defendant's attorney, Bannock County Public Defender Randy Schulthies, told a reporter that he has never seen a mediation order in a murder case.

What is driving the mediation order? It could be the fact that Bannock County Prosecutor Mark Hiedeman is retiring at the end of the year.  Mr. Hiedeman would like to see the case resolved so that his replacement does not have try a murder case. 
 
Will the first move by the prosecution be death?  Will defendant counter with going free?  While it is likely that we won't ever know where the parties start the moves in mediation, it will be interesting to see where they end up given the range of possible outcomes. 

What do you think Mr. Torvik? How far apart would the years of incarcaration need to be for you to say that the parties are getting close?

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