Comparative Judicial Conflict Resolution (JCR): Between Summary trials and ADR

16th April 2019 @ 3:00 pm – 4:00 pm Europe/Rome Timezone
Villa Schifanoia - Sala Triaria
Via Giovanni Boccaccio 121

Lecture by: Michal Alberstein

Discussant:  Michal Krajewski

This lecture examines the intersection between Alternative Dispute Resolution (ADR) and contemporary court systems by referring to the changing roles of judges in an age of vanishing trials and to the emergence of new hybrids of judicial activities. It is a comparative study of the changing roles of judges in an age of vanishing trials, conducted in Israel, Italy and England and Wales. Our findings both in the civil and criminal fields suggest that in adversarial countries judges are significantly involved only in a small amount of cases which enter the courts and that most of cases are settled or reach plea bargain without a substantial intervention of judges. In inquisitorial systems there is a significant decrease in cases which reach the verdict stage as well. When judges do intervene in legal disputes, their involvement encourages consent between parties regarding process or substance. Interventions which refer to process include convincing the parties to accept a form of summary trial (Israel civil, Italy criminal); enforcing mediation through judicial orders (Italy civil); encouraging parties to go to mediation (Israel and England and Wales). Interventions which refer to substance include providing predictions of the legal outcome (Israel, Italy and England and Wales); using procedural and administrative incentives (England and Wales and Israel); addressing the negative aspects of pursuing the legal process for the parties (Israel); using the courtroom setting to encourage settlement. The lecture overviews the variety of these forms of intervention and examines the possible connection between ADR and these new models of judicial work. In particular, and based on the above mentioned findings, the lecture examines two trends which characterize contemporary judicial work: One is the diminishing of the trial and the shift to an inquisitorial process or summary trial. The other is the development of new judicial roles related to mediation and conflict resolution. These two trajectories offer different ideals for the development of legal systems and the lecture discusses them in reference to jurisprudential ideals for the judicial role.