concurring specially:
Regarding Part I of the majority opinion, it is clear that the trial court did not carry out its proper function under Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979), and, accordingly, this matter must be re*785manded for the trial court to make that determination. I write only to comment on: (1) new trial motions under I.R.C.P. 59(a)(5); (2) the Iwakiri standards; and (3) policy regarding disclosure of settlement agreements to the jury.
I
Motions for New Trial under 59(a)(5)
I endorse Chief Justice Donaldson’s assertion today that our decision in Dinneen v. Finch, supra, provides the controlling legal principles regarding the role of trial courts in ruling on motions under 59(a)(5) and the role of this Court in reviewing the grant or denial of such motions. As his opinion points out, the holding in Dinneen is legally sound and has been followed and applied consistently by this Court, twice in just the last year. Vannoy v. Uniroyal, 111 Idaho 536, 726 P.2d 648 (1986); Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985). Today’s opinion clearly points out the distinction between the post-verdict motions of judgment n.o.v., new trial under 59(a)(6), and new trial under 59(a)(5), and it reaffirms the pre-eminent role of the standards set forth in Dinneen in deciding new trial motions under Rule 59(a)(5).
It would not be necessary to write more on this issue, except for the unfortunate misapplication of some of the language from Chief Justice Donaldson’s opinion in this case by Justice Huntley in his opinion in the companion case of Sanchez v. Galey, (Sup.Ct. No. 15918, filed Oct. 17, 1986), Petition for Rehearing pending (1986). In the Sanchez case, Justice Huntley, writing what appears to be only a plurality opinion on the Rule 59(a)(5) issue, assumes that the Court’s opinion today in this case has altered the Dinneen standard, changing it from “an appearance of passion or prejudice” to a “shocks the conscience” test. Nothing in this case supports that assumption in Justice Huntley’s opinion in Sanchez v. Galey. It is contrary to the express wording of I.R.C.P. 59(a)(5) which adopts the “passion or prejudice” standard.
In Part I of the Court’s opinion today, Chief Justice Donaldson states, “In ruling upon a motion for a new trial premised upon inadequate or excessive damages, the rule the trial court must follow is set forth in Dinneen v. Finch,...." Then, quoting from Dinneen, his opinion in this case states that, in evaluating
“ ‘a motion for a new trial ... premised on inadequate or excessive damages, the trial court must weigh the evidence and then compare the jury’s award to what he would have given had there been no jury. If the disparity is so great that it appears to the trial court that the award was given under the influence of passion or prejudice, the verdict ought not stand. It need not be proven that there was in fact passion or prejudice nor is it necessary to point to such in the record. The appearance of such is sufficient.’ ” Ante at 768, 727 P.2d at 1196. (Emphasis added.)
In commenting upon how much disparity must exist in order to justify the “appearance of passion or prejudice,” Chief Justice Donaldson states:
“How substantial this difference must be is impossible to formulate with any degree of accuracy. It will necessarily vary with the factual context of each case and the trial judge’s sense of fairness and justice. Frequent characterizations have included the idea that the disparity must ‘shock the conscience’ of the trial judge or lead him to conclude that it would be ‘unconscionable’ to let the damage award stand as the jury set it. (Citing cases.) These characterizations, of course, do little more than restate the trial judge’s discretionary perspective but are, nonetheless, frequently employed in other areas of the law and, therefore, may be useful to the trial judge.” Ante at 769-770, 727 P.2d at 1197-1198.
There is nothing in that statement suggesting that today’s opinion in this case either clarifies, changes or modifies the “passion or prejudice” standard of Rule 59(a)(5) and the Dinneen case which the Court today reaffirms. As Chief Justice Donaldson’s opinion states, those characterizations are from “other areas of the law” and, while they “do little more than restate the trial judge’s discretionary perspective,” they *786“may” be useful to the trial judge. Regardless of those other characterizations, the Court’s opinion today does not change the Dinneen standard that
“the trial court must weigh the evidence and then compare the jury’s award to what he would have given had there been no jury. If the disparity is so great that it appears to the trial court that the award was given under the influence of passion or prejudice, the verdict ought not stand. It need not be proven that there was in fact passion or prejudice nor is it necessary to point to such in the record. The appearance of such is sufficient.” Dinneen v. Finch, 100 Idaho at 625-26, 603 P.2d at 580-81.
Nothing in today’s opinion supports the statements by Justice Huntley in his opinion in Sanchez v. Galey, supra, that today’s opinion modifies the Dinneen standard. Since Chief Justice Donaldson’s opinion in this case expressly states that the degree of difference or disparity between the determinations of damages by judge and jury such as will allow granting a new trial cannot be “formulate[d] with any degree of accuracy," ante at 1197 (emphasis added), it is clear that a “shock the conscience” standard would add little or nothing to the Dinneen standard. Chief Justice Donaldson’s opinion recognizes as much by its statement that “these characterizations, of course, do little more than restate the trial judge’s discretionary perspective____” Ante at 1198.1 Furthermore, such characterizations, if they became the test, would introduce ambiguity and uncertainty in the form of the purely subjective conscience of the particular judge.
Thus, I concur in the Court’s analysis in this case which upholds the rule set forth in Dinneen without the addition of the so-called “shock the conscience” standard to the “passion or prejudice” standard which Rule 59(a)(5) has expressly adopted. Again, as we held in Dinneen, when faced with a motion for new trial under 59(a)(5):
“[T]he trial court must weigh the evidence and then compare the jury's award to what he would have given had there been no jury. If the disparity is so great that it appears to the trial court that the award was given under the influence of passion or prejudice, the verdict ought not stand. It need not be proven that there was in fact passion or prejudice nor is it necessary to point to such in the record. The appearance of such is sufficient. A trial court is not restricted to ruling a verdict inadequate or excessive ‘as a matter of law.’ (Citation omitted.) Additionally, the rule that a verdict will not be set aside when supported by substantial but conflicting evidence has no application to a trial court ruling upon a motion for a new trial.” Dinneen v. Finch, 100 Idaho at 625-626, 603 P.2d at 580-81 (emphasis in original).
When such a ruling is appealed, Dinneen also describes the scope of appellate review:
“This court is firmly committed to the rule that a trial court possesses a discretion to be wisely exercised in granting or refusing to grant a new trial and that such discretion will not be disturbed on appeal unless it clearly appears to have been exercised unwisely and to have been manifestly abused. Sanchotena v. Tower Co., 74 Idaho 541, 546, 264 P.2d 1021, 1024 (1953).” Dinneen v. Finch, 100 Idaho at 626, 603 P.2d at 581.
To enable us to adequately discharge our appellate review function, I fully concur in the conclusion in today’s opinion that trial court’s must set forth their basis and reasoning for granting or denying motions for new trial. The trial court did not do that in this case, and this Court correctly reverses and remands this case to the trial court to perform the Dinneen analysis. However, it bears repeating from Dinneen that, once *787the trial court has correctly applied Dinneen, our review on appeal is limited to whether or not the trial court’s discretion “clearly appears to have been exercised unwisely and to have been manifestly abused.” Dinneen v. Finch, 100 Idaho at 626, 603 P.2d at 581.
II
Admissibility of Hypnotically-induced Testimony
As the Court’s opinion points out, “the record is entirely void of any evidence indicating whether the trial court used the standard set forth in lwakari in its assessment of King, Dr. Brooks, and Gale Anderson as competent witnesses”. Ante at 775, 727 P.2d at 1203. Since the opinion in State v. Iwakari, 106 Idaho 618, 682 P.2d 571 (1984), had only been released one week prior to the trial in this matter, it would have been understandable had that case not even been called to the trial court’s attention. However, the record reflects that the parties were aware of the case and its requirements for specific findings to be made by the trial court before hypnotically-induced testimony is admitted into evidence were pointed out to the trial court. The majority opinion states “that many of the safeguards of the lwakari case were not followed during King’s hypnosis sessions.” Ante at 775, 727 P.2d at 1203. Actually, from the record it appears that none of the six safeguards described in lwakari were followed in the hypnotic sessions with the witness, Johnny King. Furthermore, at the hearing the trial court did not compare any statements or depositions of the witnesses made prior to hypnosis with the hypnotically enhanced testimony to determine whether any distortion or confabulation had occurred. Nevertheless, the majority of the Court, after recognizing that fact, states that such a failure “is no basis in itself to deny admission of the testimony.” Ante at 775, 727 P.2d at 1203. However, in lwakari we stated “that it would be an unusual case where admission of the testimony would be allowed where none of the safeguards mentioned were followed.” 106 Idaho at 626, 603 P.2d at 581.
Since this matter is being remanded to the trial court for a hearing to make the necessary findings on the motions for new trial, as set out in Part I of the majority opinion, we should remand the hypnosis issue to the trial court to conduct the hearing mandated by our decision in State v. Iwakari, supra. The decision on the question of the prejudice resulting from error in failing to conduct the necessary hearings and apply the appropriate standards of lwakari should be made in the first instance by the trial court which conducted the case, and not by this Court on appeal on a harmless error standard as the Court has done in this case.
III.
Disclosure of Settlement Agreements to the Jury
The Court’s analysis of this issue is less than clear and stems largely from its inability to distinguish between the two settlement agreements at issue in this case. There are two settlement agreements at issue on appeal. One between James Crane and Lori Quick, and another between James Crane and Johnny King.
Crane and Quick are nominally adverse parties in this lawsuit while Crane and King are not. Crane and King are co-defendants, along with Turner, Rollins Leasing and Sigman Meat Co., in the action brought by Quick. Crane and King are likewise non-adverse parties in their cross-claims against Turner, Rollins Leasing and Sigman Meat; in that action they are co-plaintiffs. The settlement agreement between Crane and King, nominally non-adverse parties, presents no danger of misleading the jury as to any bias resulting from the interests these parties have in the outcome of the action involved in their settlement.
The same cannot be said, however, regarding the settlement agreement between Crane and Quick. They are nominally adverse parties in the action involved in their settlement and, therefore, the jury naturally believed they had divergent or opposing interests in the outcome of that action and *788judged their testimony accordingly. The failure to disclose the existence of the settlement agreement between Crane and Quick presents a very real danger of misleading the jury regarding the adverseness of those parties. The natural consequence of thus misleading the jury is that the jury will also be hampered in its ability to judge witness credibility, e.g., bias or prejudice. In such cases, counsel for the nonsettling party (be it plaintiff or defendant) is prohibited during cross-examination of such witnesses from disclosing possible bias or prejudice. Prohibiting disclosure of settlement agreements in such circumstances undermines the truth finding function of our jury trial system. The majority completely overlooks this strong policy argument in favor of disclosing settlement agreements, a policy argument clearly not overlooked by the drafters of Rule 408 of our rules of evidence.
The inability of the majority to recognize this strong policy argument in favor of disclosure stems, as it did in Soria v. Sierra Pacific Airlines, 111 Idaho 594, 726 P.2d 706 (1986), from focusing too narrowly on the so-called “Mary Carter” agreement issue.2 As I argued in my dissent in Soria, whether a particular settlement agreement is a “Mary Carter” agreement is not the issue insofar as disclosure of settlement agreements is concerned.3 The controlling principle of law regarding disclosure of settlement agreements is contained in Rule 408 of the Idaho Rules of Evidence.4 Rule 408 expressly provides that settlement agreements may be disclosed to the jury for purposes of showing witness bias or prejudice, e.g., non-adverseness of parties.5 *789Rule 408 strikes the balance between the competing policy arguments for and against disclosure of settlement agreements. The majority’s belabored discussion of the policy arguments against disclosure is not only unnecessary, but counters the express policy behind Evidence Rule 408, which this Court recently adopted. The rule is unambiguous; it speaks for itself.
If a party moves for disclosure of a settlement agreement for purposes of showing witness bias, as was done in this case, the trial court should permit disclosure of the settlement agreement. The exception would be if the party opposing disclosure is able to show to the satisfaction of the trial court that the probative value of such evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” I.R.E. 403 (emphasis added). The parties opposing disclosure of the settlement agreement between Crane and Quick made no such showing in this case. Furthermore, it does not appear from the record before us that the trial judge made the requisite Rule 403 determination that the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury----”
Since we are remanding this case to the trial court for a redetermination regarding the motions for new trial, we should also remand for the trial court to consider the apparent error regarding disclosure of the settlement agreement between Crane and Quick.
. Chief Justice Donaldson’s opinion also correctly points out that characterizations such as “shock the conscience” and "unconscionable" are borrowed from “other areas of the law” such as contracts. They have never been used in our Idaho cases concerning motions for new trial.
. The issues raised by "Mary Carter" agreements are generally twofold: (1) whether such agreements should be disclosed to juries; and (2) whether such agreements should be prohibited entirely on grounds of violating public policy. The first issue is answered by our Evidence Rule 408, which is or should be controlling. The second issue has not be addressed by this Court and is not raised by the facts of this case. However, strong arguments exist in support of prohibiting such agreements as contrary to public policy. See Comment, Mary Carter Agreements: Unfair and Unnecessary, 32 S.W.L.J. 779 (1978).
. If the disclosure issue of “Mary Carter” agreements were before the Court, I think the majority defines such agreements far too narrowly. Rather than setting forth an absolute checklist of narrowly defined elements, proper focus should be on the purpose of such an agreement. As noted by the Florida Court of Appeals in Maule Industries, Inc. v. Rountree, 264 So.2d 445, 447 (Fla.App.1972) (cited by majority ante at 1206), “[tjhe number of variations of the so-called ‘Mary Carter Agreement’ is limited only by the ingenuity of counsel and the willingness of the parties to sign.” By focusing on the purpose of the agreement, the Court would avoid exalting form over substance.
‘‘[Tjhe plaintiffs major objective in entering a Mary Carter agreement is the solicitation of assistance in his cause against the remaining defendants.” Comment, Mary Carter Agreements: Unfair and Unnecessary, 32 S.W. L.J. 779, 780 (1978). The reason this makes the agreement so opprobrious is that it distorts, if not completely undermines, the adversarial nature of our system of justice. “[T]he real prejudice is caused by the jury’s inability to evaluate the testimony of witnesses and the position of counsel____ Complete candor with the court and opposing counsel will not eradicate the damage caused by the false appearance of an adversary proceeding.” Id. at 784. In the present case, if, the issue of liability between Quick and Crane was fully settled as claimed, then there is no reason why Crane should not have been dismissed as to Quick’s action against him and his co-defendants. Retaining Crane as a nominal defendant raises the question of why he is being kept in the trial. In the Mary Carter scenario, the presence of such a defendant (in name only) usually is only for the express purpose of “enlist[ing] support from the settling defendant and disguis[ing] him as an adversary, when he is actually a member of the plaintiffs camp.” Id. at 787. If we would adopt a definition of a “Mary Carter” agreement which focuses on substance rather than form, we should be inclined to examine more carefully this issue of disclosure of the agreement in the present case.
. Although I.R.E. 408 did not become effective until July 1, 1985, this Court had previously adopted its identical federal counterpart, F.R.E. 408, in toto, in Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980). Our action in adopting the provisions of F.R.E. 408 preceded the filing of the lawsuit in the present case.
. As indicated in my dissent in Soria, courts which have considered the issue have uniformly held that under Rule 408 disclosure of settlement agreements is permissible to prevent misleading the jury as to adverseness of the parties. See Brocklesby v. United States, 767 F.2d 1288 (9th Cir.1985); Belton v. Fibreboard Corp., 724 *789F.2d 500 (5th Cir.1984); Reichenbach v. Smith, 528 F.2d 1072 (5th Cir.1976) (“The importance of informing the jurors fully so that they can carefully judge the credibility of each witness in making their fact determination may in some situations outweigh the desire to encourage settlements.”).