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.