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Case Management and ADR

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1 Case Management and ADR
In Civil Disputes Nan Shuker Dory Reiling

2 Content Democracy/Independent Judiciary Legal Disputes Case Management
ADR, Mediation and Other Forms Some Do’s and Don’ts for Projects Please Interrupt!

3 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

4 Different Disputes and Procedures
Administrative Civil Criminal Procedural codes – principles Preliminary, Fast track, full procedure or trial

5 Administrative Disputes
Between citizens and government: Building permits, taxes Traffic rules Initiated by citizens after internal administrative procedure

6 Criminal disputes Between state and persons/corporations
Persons accused of committing actions punishable by law are prosecuted Initiated by state - prosecution

7 Civil disputes Between private parties Usually includes family cases
Initiated by a party or parties Can sometimes be used to correct social injustices

8 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

9 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.

10 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.

11 Makropulos case: too long

12 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

13 More than 100 years!

14 Judicial System Problems (1)
BASIC ASSUMPTIONS: No Court in the world can deal with all disputes that arise in society No 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

15 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

16 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

17 US: Effects of Continuances
Continuance Requested (Due to Lack of Readiness) Continuance Routinely Granted Cases Inadequately Prepared for Trial Later-Scheduled Cases Often Not Reached for Trial Too Few Ready Cases/ Judges Not Busy Unrealistically High Number of Cases Scheduled

18 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

19 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

20 Slovenia: Main Reasons for Adjourning Hearings in Study
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

21 Slovenia: Duration of Litigation Before/After Accelerated Litigation Project
Average Times Before: Bringing an Action Day 280: First Hearing Day 720: Last Hearing Day 750: Judgment

22 Slovenia: Duration of Litigation Before/After Accelerated Litigation Project
Complete Application Day 30: Answer to Application Day 60: Introductory hearing Day 150: Mediation Day 173: Submission of Joint Statement Day 180: Settlement Hearing Day 270: Trial Day 300: Judgment

23 Netherlands: Statistics (1)- Groups
Outcome uncertain? + - 4 judgment 1 title Zero Sum Win-Win 2 notarial 3 settlement +

24 Netherlands: Statistics (2) - Relative
Outcome uncertain? + - 35% 8% 1 title 4 judgment Zero Sum Win-Win 2 notarial 3 settlement 35% 8% + Source: Civil jurisdiction, Judicial Council 2003

25 Netherlands: Statistics (3) - Time
Outcome uncertain? + - 2-4 weeks 4-12 months 1 title 4 judgment Zero Sum Win-Win 2 notarial 3 settlement 1-3 months 3-6 months + Source: Judicial Council 2003

26 Netherlands: Statistics (4)
Trial Trial Hearing No hearing No hearing Hearing Small claims Commercial cases

27 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

28 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

29 ADR: Any DR Other Than Court DR
+ Consumer Conflict Commissions International Arbitration Discretionary power SquareTrade Mediation - - + Cost

30 Continuum of ADR Mechanisms:
Arbitration (Non-Binding) Trial Mediation Informal Party-Focused The 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. Formal Neutral Case Evaluation Intervenor-Focused Arbitration (Binding) Conciliation

31 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.

32 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

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) Trial Mediation Informal Party-Focused The 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. Formal Neutral Case Evaluation Intervenor-Focused Arbitration (Binding) Conciliation

37 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

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 individual wrong-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 Neutrals Selection of Cases Management of ADR Schedule Monitoring and Evaluation of System

41 Selection of Neutrals Identify what makes a good neutral Recruit
Competence Availability Diversity Recruit Screen Select Multi-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 period Mentoring phase Continuing education workshop sessions conference attendance Mentor status Evaluator status Trainer status Mediators 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 Needed One Party Non-compromising Process: Pro Se Party Equity Relief Involved Continuing Relationship of Parties Insurance Co Responsible for Claim Contract Case Tort Case P.I. Case/Both Experienced Counsel P.I. Case/Inexperienced Counsel Characteristics: Motor Vehicle Case Type: ARB MED NCE Factors Criteria

44 ADR as part of Case Management:
Civil Case Filing Scheduling Conference (Choice of ADR) Discovery Closes Arbitration Mediation Case Evaluation ADR 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? Yes Case Dismissed No Pretrial Conference Trial

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 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.

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