Presentation is loading. Please wait.

Presentation is loading. Please wait.

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

Similar presentations

Presentation on theme: "Case Management and ADR In Civil Disputes Nan Shuker Dory Reiling."— Presentation transcript:

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 Dos and Donts 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 Too Few Ready Cases/ Judges Not Busy Unrealistically High Number of Cases Scheduled Later-Scheduled Cases Often Not Reached for Trial Cases Inadequately Prepared for Trial

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 ReasonsPercentage Taking evidence59.21 Party or plenipotentiary absent in spite of being duly summoned Negotiations among parties Judge ill or absent Party or plenipotentiary absent2.63 Total88.14

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

22 1.Complete Application 2.Day 30: Answer to Application 3.Day 60: Introductory hearing 4.Day 150: Mediation 5.Day 173: Submission of Joint Statement 6.Day 180: Settlement Hearing 7.Day 270: Trial 8.Day 300: Judgment

23 Netherlands: Statistics (1)- Groups Outcome uncertain?-+ Zero Sum Win-Win judgment 2 notarial3 settlement 1 title

24 judgment1 title 2 notarial3 settlement 35% 8% Netherlands: Statistics (2) - Relative Outcome uncertain? Zero Sum Win-Win Source: Civil jurisdiction, Judicial Council 2003

25 weeks 1-3 months3-6 months 4-12 months Source: Judicial Council 2003 Netherlands: Statistics (3) - Time Outcome uncertain? Zero Sum Win-Win 4 judgment1 title 2 notarial3 settlement

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

27 Netherlands: Case Management Summary Fast track (20%): –Hearing + settlement/judgment –Partys choice Full track –Theory: hearing if suitable –Practice: hearing if necessary –Case by case or policy –Evidence only if absolutely necessary –Judges 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 Cost - Discretionary power - + International Arbitration SquareTradeMediation Consumer Conflict Commissions +

30 Continuum of ADR Mechanisms: Mediation Neutral Case Evaluation Arbitration (Non-Binding) Arbitration (Binding) Conciliation Trial

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: Mediation Neutral Case Evaluation Arbitration (Non-Binding) Arbitration (Binding) Conciliation Trial

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 –Competence –Availability –Diversity Recruit Screen Select

42 Development of Neutrals Apprenticeship period –Mentoring phase Continuing education –workshop sessions –conference attendance Mentor status Evaluator status Trainer status

43 Judges 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: ARBMEDNCEFactorsCriteria

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

45 Donts for Judicial Reform Projects Dont: 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 Dos for Judicial Reform Projects Do: ALWAYS do a case flow assessment study prior to beginning any system change Identify the countrys 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.

Download ppt "Case Management and ADR In Civil Disputes Nan Shuker Dory Reiling."

Similar presentations

Ads by Google