Presentation on theme: "Case Management and ADR"— Presentation transcript:
1 Case Management and ADR In Civil DisputesNan ShukerDory Reiling
2 Content Democracy/Independent Judiciary Legal Disputes Case Management ADR, Mediation and Other FormsSome Do’s and Don’ts for ProjectsPlease Interrupt!
3 Universal Declaration of Human Rights Article 10Full equalityFair and public hearingIndependent and impartial tribunalRights and obligations/Criminal chargeICCPR art. 14, ECHR art. 6:Reasonable delay
4 Different Disputes and Procedures AdministrativeCivilCriminalProcedural codes – principlesPreliminary, Fast track, full procedure or trial
5 Administrative Disputes Between citizens and government:Building permits, taxesTraffic rulesInitiated by citizens after internal administrative procedure
6 Criminal disputes Between state and persons/corporations Persons accused of committing actions punishable by law are prosecutedInitiated by state - prosecution
7 Civil disputes Between private parties Usually includes family cases Initiated by a party or partiesCan sometimes be used to correctsocial injustices
8 Reform Projects Tend to Concentrate on Civil Not criminal: too political and sensitiveNot administrative: too diverse for general discussionMajority of disputes are civil and disputants are part of countries’ economic base
9 Most Civil Cases Are Disposed Without Trial 95 % of all cases in US are disposed without trialMore than 95% of all civil cases in the Netherlands are disposed without presentation of evidence.
10 Caseflow Management Defined Entire set of actions a court takes from initial disposition to the completion of all post disposition court workMonitors and controls the progress of cases from commencement through trialIn order to make sure that justice is done promptly.
12 Traditional Case Management Assumption that all cases are alikeOperates as if all cases go to trialCases only get attention when attorney requests actionCases not individually assigned to one JudgeUse of calendar calls to determine case statusOldest case is processed first
14 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 handleInsufficient institutional resources
15 Judicial System Problems (2) Court backlog reduces the time that can be allocated to each disputeDelays strengthen the incentives for breaching obligationsPoor compliance in turn generates more legal disputes
16 Judicial System Problems (3) Outdated proceduresExcessively adversarial, lengthy, costly trialsJudges demand more resources in court and case management, more disciplinary authority over the progress of litigation
17 US: Effects of Continuances Continuance Requested(Due to Lackof Readiness)Continuance Routinely GrantedCases InadequatelyPrepared for TrialLater-Scheduled CasesOften Not Reachedfor TrialToo FewReady Cases/Judges Not BusyUnrealistically High Numberof Cases Scheduled
18 Why Courts Should Manage Caseflow Delay tends to lead to injusticeAdvocate/party control leads to delayCourt control can ensure order, fairness, and equal treatmentMaximize use of public resourcesIndependence means control
19 Main Techniques for Case Management Early court interventionA good working relationship between the bench and the bar.Time goals for each eventA strict continuance policyA date certain for trialThe use of individual calendarsAn aggressive alternative dispute resolution program
20 Slovenia: Main Reasons for Adjourning Hearings in Study PercentageTaking evidence59.21Party or plenipotentiary absent in spite of being duly summoned12.50Negotiations among parties9.20Judge ill or absent4.60Party or plenipotentiary absent2.63Total88.14
21 Slovenia: Duration of Litigation Before/After Accelerated Litigation Project Average Times Before:Bringing an ActionDay 280: First HearingDay 720: Last HearingDay 750: Judgment
27 Netherlands: Case Management Summary Fast track (20%):Hearing + settlement/judgmentParty’s choiceFull trackTheory: hearing if suitablePractice: hearing if necessaryCase by case or policyEvidence only if absolutely necessaryJudge’s choice
28 Cost of Taking a Case to Court You PayCourt FeesLegal FeesCost of witnesses and expertsYour own timeTaxpayer PaysCourt CostsJudicial timeStaff timeMaterialBuildingOther overheadLegal Aid
29 ADR: Any DR Other Than Court DR +Consumer Conflict CommissionsInternational ArbitrationDiscretionary powerSquareTradeMediation--+Cost
30 Continuum of ADR Mechanisms: Arbitration(Non-Binding)TrialMediationInformalParty-FocusedThe Multi-Door Courthouse pilot in Washington provides binding and nonbinding arbitration, neutral evaluation, mediation, conciliation and facilitation. These ADR mechanisms range from structured and formal adr in which power is focused on the intervenor, to unstructured, informal adr where formal power remains with the litigants.FormalNeutral CaseEvaluationIntervenor-FocusedArbitration(Binding)Conciliation
31 Conciliation Informal process Neutral third party intermediary, Brings the disputants together forSettlement discussions rather than a formal mediation.It is a very general form of third party intervention of a facilitative nature.
32 Mediation Private, informal process Neutral mediator Disputants reach aMutually acceptable agreement.Opportunity for parties to present evidence and arguments and to explore interests together.The mediator does not render a decisionParties decide the terms of the agreement
33 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.
34 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.
35 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.
36 Continuum of ADR Mechanisms: Arbitration(Non-Binding)TrialMediationInformalParty-FocusedThe Multi-Door Courthouse pilot in Washington provides binding and nonbinding arbitration, neutral evaluation, mediation, conciliation and facilitation. These ADR mechanisms range from structured and formal adr in which power is focused on the intervenor, to unstructured, informal adr where formal power remains with the litigants.FormalNeutral CaseEvaluationIntervenor-FocusedArbitration(Binding)Conciliation
37 Benefits of ADR Speed Cost control Procedures are less formal and more flexible than a Court trialExpert assistancePrivacy of the matter remains intact
38 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.
39 Drawbacks to ADR Legal precedent is not established. Confidentiality protects individualwrong-doers.Social justice issues do not receive a public forum.Large power inequities between the parties can lead to injustice.
40 Creation of ADR Program Choice of NeutralsSelection of CasesManagement of ADR ScheduleMonitoring and Evaluation of System
41 Selection of Neutrals Identify what makes a good neutral Recruit CompetenceAvailabilityDiversityRecruitScreenSelectMulti-Door trains individuals in the community to mediate for us, and we pay them a small stipend after they provide six hours of pro bono service to the court each year. I call this a “compensated volunteer” model, because although our neutrals receive some compensation, they mediate for reasons other than the money. Courts are uniquely able to attract and retain mediators and other neutrals because we can offer training without cost and because we have an unending supply of cases. At Multi-Door, we typically receive hundreds of mediator applications every year. We first identified what it is for us that makes a good mediator. We tend to look for skills and aptitudes rather than degrees. We also need mediators who are willing to take cases, and who represent the diversity of our community.We recruit candidates from local bar associations and community groups, and screen them through an interview process. We recently interviewed 135 candidates for a family mediation training class of 28. The selection was based upon candidates’ scores on a performance-based interview, where we measured interpersonal skills, information management, communication skills, process orientation, self-awareness and availability.
42 Development of Neutrals Apprenticeship periodMentoring phaseContinuing educationworkshop sessionsconference attendanceMentor statusEvaluator statusTrainer statusMediators develop their skills as they practice, and so we work with them through a mentoring period and provide continuing in-service training sessions. Our more seasoned mediators become mentors to new mediators, evaluators, or trainers. We periodically observe and evaluate all of our neutrals so as to improve the quality of our programs.
43 Judge’s Guide Speed Privacy Parties’ Needs: Less Discovery Needed More Discovery NeededOne Party Non-compromisingProcess:Pro Se PartyEquity Relief InvolvedContinuing Relationship of PartiesInsurance Co Responsible for ClaimContract CaseTort CaseP.I. Case/Both Experienced CounselP.I. Case/Inexperienced CounselCharacteristics:Motor VehicleCase Type:ARBMEDNCEFactorsCriteria
44 ADR as part of Case Management: Civil Case FilingScheduling Conference(Choice of ADR)Discovery ClosesArbitrationMediationCase EvaluationADR can be performed anywhere in the life of a case, from pre-filing to just before trial. For civil cases, adr (which has the green background) is performed well after the cases is filed and discovery is completed. We recently have been experimenting with mediation at an earlier stage of these cases.Settlement?YesCase DismissedNoPretrial ConferenceTrial
45 Don’ts for Judicial Reform Projects Begin a project without the strong support of someone in a leadership role in the Court system.Make decisions about change from anecdotal information.
46 Do’s for Judicial Reform Projects ALWAYS do a case flow assessment study prior to beginning any system changeIdentify the country’s particular problemsFind a solution that meets the needs of the country and fits with what existsObtain consensus and support for the changes from system usersEstablish a coordinating committee with representatives from all system users.