Case Management and ADR In Civil Disputes Nan Shuker Dory Reiling.
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Transcript of Case Management and ADR In Civil Disputes Nan Shuker Dory Reiling.
Case Management and ADR
In Civil Disputes
Nan ShukerDory Reiling
Content
Democracy/Independent Judiciary Legal DisputesCase ManagementADR, Mediation and Other FormsSome Do’s and Don’ts for ProjectsPlease Interrupt!
Universal Declaration of Human Rights
Article 10 • Full equality• Fair and public hearing• Independent and impartial tribunal• Rights and obligations/Criminal
charge• ICCPR art. 14, ECHR art. 6:• Reasonable delay
Different Disputes and Procedures
• Administrative • Civil• Criminal• Procedural codes – principles • Preliminary, Fast track, full
procedure or trial
Administrative Disputes
• Between citizens and government: – Building permits, taxes– Traffic rules
• Initiated by citizens after internal administrative procedure
Criminal disputes
• Between state and persons/corporations
• Persons accused of committing actions punishable by law are prosecuted
• Initiated by state - prosecution
Civil disputes
• Between private parties• Usually includes family cases• Initiated by a party or parties• Can sometimes be used to
correct social injustices
Reform Projects Tend to Concentrate on Civil
• Not criminal: too political and sensitive
• Not administrative: too diverse for general discussion
• Majority of disputes are civil and disputants are part of countries’ economic base
Most Civil Cases Are Disposed Without Trial
• 95 % of all cases in US are disposed without trial
• More than 95% of all civil cases in the Netherlands are disposed without presentation of evidence.
Caseflow Management Defined
• Entire set of actions a court takes from initial disposition to the completion of all post disposition court work• Monitors and controls the progress of cases from commencement through trial • In order to make sure that justice is done promptly.
Makropulos case: too long
Traditional Case Management• Assumption that all cases are alike• Operates as if all cases go to trial• Cases only get attention when
attorney requests action• Cases not individually assigned to
one Judge• Use of calendar calls to determine
case status • Oldest case is processed first
More than 100 years!
Judicial System Problems (1)
BASIC ASSUMPTIONS: No Court in the world can deal with all
disputes that arise in societyNo Court in the world can take to trial
every case that is filed.
• 7% of disputes are resolved through courts (NL)
• Too many legal disputes for traditional national courts to handle
• Insufficient institutional resources
Judicial System Problems (2)
• Court backlog reduces the time that can be allocated to each dispute
• Delays strengthen the incentives for breaching obligations
• Poor compliance in turn generates more legal disputes
Judicial System Problems (3)
• Outdated procedures• Excessively adversarial, lengthy,
costly trials• Judges demand more resources in
court and case management, more disciplinary authority over the progress of litigation
US: Effects of ContinuancesContinuance Requested
(Due to Lack of Readiness)
Continuance Routinely Granted
Too Few Ready Cases/
Judges Not Busy
Unrealistically High Numberof Cases Scheduled
Later-Scheduled Cases Often Not Reached
for Trial
Cases InadequatelyPrepared for Trial
Why Courts Should Manage Caseflow
• Delay tends to lead to injustice • Advocate/party control leads to delay• Court control can ensure order,
fairness, and equal treatment• Maximize use of public resources• Independence means control
Main Techniques for Case Management
• Early court intervention • A good working relationship between the
bench and the bar.• Time goals for each event• A strict continuance policy• A date certain for trial• The use of individual calendars • An aggressive alternative dispute
resolution program
Slovenia: Main Reasons for Adjourning Hearings in Study
Reasons Percentage
Taking evidence 59.21
Party or plenipotentiary absent in spite of being duly summoned
12.50
Negotiations among parties 9.20
Judge ill or absent 4.60
Party or plenipotentiary absent 2.63
Total 88.14
Average Times Before:
• Bringing an Action• Day 280: First
Hearing• Day 720: Last
Hearing• Day 750: Judgment
0 200 400 600 800
days afterbefore
Slovenia: Duration of Litigation Before/After
Accelerated Litigation Project
Slovenia: Duration of Litigation Before/After
Accelerated Litigation Project1. Complete Application2. Day 30: Answer to
Application3. Day 60: Introductory
hearing4. Day 150: Mediation5. Day 173: Submission
of Joint Statement6. Day 180: Settlement
Hearing7. Day 270: Trial8. Day 300: Judgment
0 200 400 600 800
days afterbefore
Netherlands: Statistics (1)- Groups
Outcome uncertain?- +
Zero Sum
Win-Win
-
+
4 judgment
2 notarial 3 settlement
1 title
- +
-
+
4 judgment1 title
2 notarial 3 settlement
35%
35% 8%
8%
Netherlands: Statistics (2) - Relative
Outcome uncertain?
Zero Sum Win-Win
Source: Civil jurisdiction, Judicial Council 2003
- +
-
+
2-4 weeks
1-3 months 3-6 months
4-12 months
Source: Judicial Council 2003
Netherlands: Statistics (3) - Time
Outcome uncertain?
Zero Sum Win-Win
4 judgment1 title
2 notarial 3 settlement
geenzittingwelzittingenquete
58.000 Small claims 17.000 Commercial cases
No hearing
Hearing
Trial
Trial
Hearing
Netherlands: Statistics (4)
No hearing
Netherlands: Case Management Summary
• Fast track (20%): – Hearing + settlement/judgment– Party’s choice
• Full track – Theory: hearing if suitable– Practice: hearing if necessary– Case by case or policy– Evidence only if absolutely necessary– Judge’s choice
Cost of Taking a Case to Court
+You Pay+ Court Fees+ Legal Fees+ Cost of
witnesses and experts
+ Your own time
+Taxpayer Pays+ Court Costs
+ Judicial time+ Staff time+ Material+ Building+ Other overhead
+ Legal Aid
ADR:Any DR Other Than Court DR
Cost-
Discretionary power
-
+
International Arbitration
SquareTrade Mediation
Consumer Conflict
Commissions
+
Continuum of ADR Mechanisms:
Mediation
Neutral CaseEvaluation
Arbitration(Non-Binding)
Arbitration(Binding)
Conciliation
Trial
Conciliation
• Informal process • Neutral third party intermediary, • Brings the disputants together for • Settlement discussions rather than a
formal mediation.
It is a very general form of third party intervention of a facilitative nature.
Mediation
• Private, informal process • Neutral mediator • Disputants reach a • Mutually acceptable agreement.
• Opportunity for parties to present evidence and arguments and to explore interests together.
• The mediator does not render a decision • Parties decide the terms of the agreement
Neutral Case Evaluation
• Each party presents a brief outline of its case to a neutral third-party, usually a lawyer or someone with expertise in the subject area in dispute.
• That person evaluates the case and renders a non-binding advisory opinion that can be used by the parties as a basis for settlement.
Arbitration
• Disputants select a • Neutral third-party decision-maker. • Less formal than court adjudication. • Each party presents legal and factual
arguments to the arbitrator. • Arbitrator then renders a decision or
award.
Arbitration
Two Types • Non-binding• Binding
Unless the parties have agreed by contract to binding arbitration, the court does not order anything other than non-binding.
Continuum of ADR Mechanisms:
Mediation
Neutral CaseEvaluation
Arbitration(Non-Binding)
Arbitration(Binding)
Conciliation
Trial
Benefits of ADR
•Speed•Cost control•Procedures are less formal and more flexible than a Court trial
•Expert assistance•Privacy of the matter remains intact
Specific Benefits of Mediation • Procedures are informal and flexible, giving
the parties the best chance to “speak their piece.”
• Creative options for resolution are often identified.
• Outcome remains in the hands of the parties.
• No outside decision-maker pronounces a “winner” and a “loser.”
• Relationships between the parties may be preserved.
Drawbacks to ADR
• Legal precedent is not established.• Confidentiality protects individual wrong-doers.• Social justice issues do not receive a
public forum.• Large power inequities between the
parties can lead to injustice.
Creation of ADR Program
• Choice of Neutrals• Selection of Cases• Management of ADR Schedule• Monitoring and Evaluation of
System
Selection of Neutrals
• Identify what makes a good neutral– Competence– Availability – Diversity
• Recruit• Screen• Select
Development of Neutrals
• Apprenticeship period– Mentoring phase
• Continuing education– workshop sessions– conference attendance
• Mentor status• Evaluator status• Trainer status
ADR as part of Case Management:Civil Case Filing
Scheduling Conference(Choice of ADR)
Discovery Closes
MediationArbitration Case Evaluation
Settlement?
Pretrial Conference
Yes
Case Dismissed
Trial
No
Don’ts for Judicial Reform Projects
Don’t:• Begin a project without the strong
support of someone in a leadership role in the Court system.
• Make decisions about change from anecdotal information.
Do’s for Judicial Reform Projects
Do:• ALWAYS do a case flow assessment study
prior to beginning any system change • Identify the country’s particular problems• Find a solution that meets the needs of the
country and fits with what exists• Obtain consensus and support for the
changes from system users• Establish a coordinating committee with
representatives from all system users.