Skip to main content

Judicial Conflict Resolution: Examining Hybrids of Non-adversarial Justice

Periodic Reporting for period 1 - JCR (Judicial Conflict Resolution: Examining Hybrids of Non-adversarial Justice)

Reporting period: 2016-01-01 to 2017-06-30

The overarching goal of the project is to understand the role of judges and courts in promoting settlement: describing and conceptualizing judicial activities from a conflict resolution perspective. In accomplishing this objective, the project has theoretical, empirical and prescriptive policy components. The research examines contemporary roles of judges in civil and criminal courts in which trials are vanishing. We explore the prevalent settlement and plea-bargain culture, where conflict resolution practices are performed in the shadow of authority. This investigation is motivated by two working hypotheses: first, that many case dispositions occur without trial or without a contested judgment, as the result of active conflict resolution activities conducted by the presiding judge(s); and second, that these JCR activities are not necessarily reflected in the formal case record.

The phenomenon of judicial conflict resolution is complicated, multi-faceted and somewhat elusive. The JCR hypothesis is that a significant portion of judicial work is under-theorized, undocumented, and only partially regulated. While “the vanishing trial’ has become a prevalent phenomenon nor equivalent development in empirical and theoretical research have been conducted in order to understand its scope and significance. Awareness to the “settlement culture” and its comparative study in three states will contribute to a more comprehensive understanding of the role of judges and courts in the 21st century.

Overall Objectives:
• Empirically: Capture judicial practices in promoting settlement as reflected in regulation, court records and courtrooms: Describe and analyze the regulatory framework in which judges operate to promote settlement through examining legislation, court regulation and related policies. Describe and analyze court dockets with regard to the distribution and relationship between case types, legal procedure and modes of disposition. Describe and analyze new court procedures and experimental practices related to settlement activities. Describe, analyze and conceptualize JCR practices as observed in the courtroom and reported by relevant stakeholders.
• Theoretically: promote a Jurisprudence of judicial conflict resolution and a current conceptualization of the role of judges.
• Prescriptively: Improve courts’ institutional and professional operation with regard to JCR activities: Make recommendations for—and assist the implementation of—appropriate court procedures and system design, legislation and regulation. Develop and conduct JCR related judicial training. Disseminate and implement knowledge about JCR.
The first stage of the research included the collection of data on court-connected settlements, the legal framework governing judicially-induced settlements, and the settlement culture in each country. It included court docket data analysis, interviews with lawyers, judges and court administrators and exploratory open-ended pilot observations in trial courts. The goals of this stage were to provide context and framework for studying the phenomenon of JCR in each country of research and for outlining the scope of the comparative aspect of the research. This stage was also intended to inform the development of a systematic observation methodology and a framework of analysis to be applied in later stages.
The regulatory mapping activity has been completed in the three countries of research during the first stage. It revealed diverse legal regimes and cultures in reference to settlement activities of judges, and different interplays between overriding objectives and actual activities. A memorandum summarizing the main findings is available, and a number of publications will be the products of this activity.
During the initial stages of gathering court docket and case-record data for purposes of quantitative analysis of court-connected settlements and related judicial activity, we discovered that in the three states of research there are problems with obtaining reliable data. Relevant data is either not available in the official computerized court record or it is significantly unreliable with respect to key variables of interest, such as mode of disposition. We therefore adopted a different research approach than the one originally planned in the DOA. Originally, we planned to use descriptive statistics of case dockets and to learn about settlement by using big data. Due to the problems of reliability and availability mentioned above, we are now working with representative samples of cases in which relevant data is coded based on all case documents. Our plan is to complete the necessary coding and analysis by June 2018, one year into the second stage of the research project. This will enable us to provide a predicative model for settlement and a more accurate and full picture of the settlement phenomenon.
During the first stage, we conducted exploratory observations in courtrooms in Israel, Italy and England and Wales. The findings of these pilot observations, especially the ones conducted in Israel, now serve us in building the methodology for conducting more systematic observations in the second stage of research. These preliminary observations yielded very rich data, and inspired the expansion of the observation activity through the creation of a methodology for systematic courtroom observation and systematic analysis of a larger sample of hundreds of observations. Furthermore, we now explore the use of both qualitative processing software and a quantitative analysis strategy based on systematic content-analysis and coding.
The development of the quantitative task, to include coding of a sample taken from legal datasets will enrich the current documentation of the settlement phenomenon in three research countries and will provide a more comprehensive picture of settlement including providing recommendations regarding coding future court files.
The project development, especially the reach out created through the various dialogue circles and other public and media events, increased the awareness to the culture of settlement, and to the changing roles of judges within it. Surprisingly, during the first stage of mapping, much data and insights from the ground was gathered. Judges and lawyers participated eagerly in our interdisciplinary discussions and a fruitful dialogue was created between academics, lawyers and judges who shared with us valuable information about their new roles. Interest in more knowledge and training is emerging from the field already at this point.
The pilot observations which were supposed to be conducted at this stage have developed to hundreds of rich reports on court observations which will be analyzed by us by using mixed methods and through developing unique instruments to evaluate JCR activities.