Pretrial Negotiation, Litigation, and Procedural Rules

Jiong Gong () and Randolph McAfee

Economic Inquiry, 2000, vol. 38, issue 2, 218-38

Abstract: We model the civil dispute resolution process as a two-stage game with the parties bargaining to reach a settlement in the first stage and then playing a litigation expenditure game at trial in the second stage. We find that the English rule shifts the settlement away from the interim fair and unbiased settlement in most circumstances. Overall welfare changes are in favor of the party who makes the offer in the pretrial negotiation stage. Lawyers however, always benefit from the English rule, because fee shifting increases the stake of the trial and thus intensifies the use of the legal service. Copyright 2000 by Oxford University Press.

Date: 2000
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