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Case Management and ADR

Case Management and ADR. In Civil Disputes Nan Shuker Dory Reiling. Content . Democracy/Independent Judiciary Legal Disputes Case Management ADR, Mediation and Other Forms Some Do’s and Don’ts for Projects Please Interrupt!. Universal Declaration of Human Rights. Article 10

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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

  21. Slovenia: Duration of Litigation Before/AfterAccelerated 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/AfterAccelerated 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? + - 4judgment 1 title Zero Sum Win-Win 2notarial 3settlement +

  24. Netherlands: Statistics (2) - Relative - Outcome uncertain? + - 8% 35% 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? + - 4-12 months 2-4 weeks 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 No hearing Hearing No hearing Hearing 58.000 Small claims 17.000 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. 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 Cost of Taking a Case to Court

  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 Formal Intervenor-Focused Neutral Case Evaluation 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 Formal Intervenor-Focused Neutral Case Evaluation 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 • 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. ADR as part of Case Management: Civil Case Filing Scheduling Conference (Choice of ADR) Discovery Closes Arbitration Mediation Case Evaluation Settlement? Yes Case Dismissed No Pretrial Conference Trial

  44. Don’ts for Judicial Reform Projects Don’t: • Begin a project without the strong support of someone in a leadership role in the Court system. • Make decisions about change from anecdotal information.

  45. Do’s for Judicial Reform Projects Do: • 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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