Periodic Reporting for period 4 - JCR (Judicial Conflict Resolution: Examining Hybrids of Non-adversarial Justice)
Berichtszeitraum: 2020-07-01 bis 2020-12-31
The purpose of the judicial system is to serve justice by delivering a verdict after a fair trial, but in reality, legal systems around the world are experiencing a vanishing trial phenomenon. Due to the number and cost of cases, among other reasons, parties are encouraged to find different doors to legal justice.“Judicial Conflict Resolution: Examining Hybrids of non–adversarial justice” (JCR), headed by Prof. Michal Alberstein at Bar Ilan University in Israel, examined the changing roles of judges in three legal systems – England and Wales, Italy, and Israel. Her team explored the ways in which most cases in common law systems are disposed during the preliminary stage, before even seeing a trial judge, and how the prevailing model of justice-through-adjudication has declined, while settlement numbers rise.This trend is also beginning in continental legal systems in civil and criminal cases.
In the name of efficiency, the role of judges has changed dramatically, and is currently unarticulated. Judges, lawyers, and litigants find themselves, both in civil and criminal cases, not in the expected trial scenario, but in a negotiation setting. Litigants, defendants, and victims drift through the new negotiation courts and abbreviated proceedings without proper information and awareness of the transformed system. The team analysed various proceedings and practices, conducting court observations, interviews and a conceptual analysis. They described pretrial practices, arraignment hearing dynamics, judicial arbitration, criminal mediation, civil conciliation and other proceedings. Practices such as mediation order, settlement proposals, procedural sanctions and incentives were analyzed, and new comparative insights on the transplantation of legal reforms across different legal cultures were generated.The research suggests the following recommendations: Training for Judges: Legal education for lawyers should be developed to build negotiation skills and a robust theory of compromise and negotiated law. More Choice and Relevant Information for Litigants: A human-centered court design can provide relevant information on settlement outcomes and case dispositions. Decision-making algorithms may help litigants identify their needs, generating tailor-made and creative solutions for their conflict. Novel concepts developed throughout the research include Multi-level Access to Justice, Authority-based Mediation, Judicial Procedural Involvement (JPI), Responsive Legal Systems, Expanded Judicial Discretion, Constructive Plea-Bargaining, Conflict Resolution in the Shadow of the Law, A Patchwork of Legal Doors, Personalized Legal Justice, and JCR Ethical Codes. These concepts have been published in numerous academic papers and will be discussed within a forthcoming book which will outline research findings.
In the name of efficiency, the role of judges has changed dramatically, and is currently unarticulated. Judges, lawyers, and litigants find themselves, both in civil and criminal cases, not in the expected trial scenario, but in a negotiation setting. Litigants, defendants, and victims drift through the new negotiation courts and abbreviated proceedings without proper information and awareness of the transformed system. The team analysed various proceedings and practices, conducting court observations, interviews and a conceptual analysis. They described pretrial practices, arraignment hearing dynamics, judicial arbitration, criminal mediation, civil conciliation and other proceedings. Practices such as mediation order, settlement proposals, procedural sanctions and incentives were analyzed, and new comparative insights on the transplantation of legal reforms across different legal cultures were generated.The research suggests the following recommendations: Training for Judges: Legal education for lawyers should be developed to build negotiation skills and a robust theory of compromise and negotiated law. More Choice and Relevant Information for Litigants: A human-centered court design can provide relevant information on settlement outcomes and case dispositions. Decision-making algorithms may help litigants identify their needs, generating tailor-made and creative solutions for their conflict. Novel concepts developed throughout the research include Multi-level Access to Justice, Authority-based Mediation, Judicial Procedural Involvement (JPI), Responsive Legal Systems, Expanded Judicial Discretion, Constructive Plea-Bargaining, Conflict Resolution in the Shadow of the Law, A Patchwork of Legal Doors, Personalized Legal Justice, and JCR Ethical Codes. These concepts have been published in numerous academic papers and will be discussed within a forthcoming book which will outline research findings.
The research activities included theoretical and regulatory legal research and quantitative and qualitative empirical research. We conducted: quantitative mapping of the phenomenon of judges’ settlement activities in civil and criminal cases, using databases from the various legal systems; in-depth interviews with lawyers, litigants, judges (serving or retired), and officials in the legal system; an analysis of observations of hundreds of proceedings in courts, both criminal and civil. a normative comparative review of the regulation of JCR activity in the three countries of research, including reference to reform schemes, ethical conduct rules and technological incentives. We developed and advanced legal theory via dialogue circles and articles and books as well as training for judges. We created a rich data system based on manual coding of information from court dockets and big data, which is available to researchers and the public. Publications of the project: https://zenodo.org/search?page=1&size=20&q=owners:46555
The research has culminated in a panoramic view of the judiciary as going through substantive transition and transformation. Adjudication has declined and been transformed across legal systems in both civil and criminal cases. It is no longer the paradigmatic process of judicial activities as forms of abbreviated trials, alternative doors and hybrid practices have developed. A new horizon of conflict resolution is not part of this transformation. Instead, both civil parties, defendants and victims drift into negotiations in the shadow of the court, without relevant knowledge and training. In all three jurisdictions (continental, mixed and common law), in both civil and criminal justice, the role of the judge has been shortened and cloistered. An emphasis on stages preceding trial (early stages of negotiation, pre-action protocols, mandatory mediation, etc.) cause fewer cases that reach a judge. While the move towards consensual resolution in the three jurisdictions presents an opportunity to reform the judicial role to inherently include the values of consensual resolution, to broaden and deepen the judicial role – this has not occurred in any of the jurisdictions. Legislative reform in the three jurisdictions authorizes judges to facilitate settlement, this occurs only in a very narrow sense, as exposed by our mixed methodology. Our study showcases three phases of judicial settlement culture. Italy, presents the dawn of settlement culture, with judges presenting mediation in a soft light, as a beneficial alternative, the "mediability" of which they explain to the disputants. The mediation alternative seems more facilitative and transformative than evaluative, creating a meaningful alternative. Judges have supervisory authority to oversee the fairness of the plea bargaining. Judges maintain their primarily adjudicative role, making a clear distinction between mediation received outside court and the application of the law inside courts. Israel is the high noon of settlement culture. Settlement beats down on reluctant disputants as it is presented by judges many a time as the only good option. Trial is regularly presented in a negative light, with mediation described as the shorter, more cost-efficient alternative rather than the method most appropriate for the dispute due to specific characteristics. This is true both for civil and criminal trials. England is the twilight of judicial settlement culture – the majority of cases, both civil and criminal, do not reach a judge, but rather are settled earlier. Incentives for settlement (or disincentives for trial) are high to the point that freedom of choice is questionable. In civil justice, the bureaucracy and costs of filing a case have risen due to pre-action protocols. If the parties surmount the bureaucratic and financial obstacles, by the time they reach a judge, settlement is perfunctory and late in the process. In criminal justice, the emphasis on reaching a plea bargain as early as possible in order to receive a maximal sentence reduction can place pressure on defendants to plead guilty. The study calls for further inquiry into the transformation of formalistic tenets other than adjudication. Law claims to be apolitical, individualistic, given to mechanical application and detached from context. However, the reality is a far cry from a clear-cut application of the law. While the wording of the law is similar between countries, its application differs greatly between the legal systems. Contemporary judges are poised to encourage settlement as a central judicial activity.