Move away from the building: What is the role of ADR in the online court?

Posted on 27/12/2017 by Dr Lola Akin Ojelabi

This blog post written by Dr Sue Prince, University of Exeter is an abridged version of paper delivered at the ADR Research Network Roundtable held from 4-5 December 2017 in Dunedin, New Zealand.

The court as an imposing building exists as a symbol of the ideal of justice: the Central Criminal Court at the Old Bailey in London has Lady Justice standing on the top of its dome, demonstrating the vital importance of the rule of law. Yet the symbolism of the local court as a fixture of the community no longer holds true. Certainly, in the civil courts there are many unresolved problems with the numbers of litigants-in-person who cannot afford legal support. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave rise to so many litigants-in-person that judges had to reconsider their approaches and become more inquisitorial in approach and less adversarial.

Central London County Court

The County Courts Act 1846, which established the county courts, came into force with the idea that courts should be cheaper and more accessible. In 1847, following the introduction of the statute, there were 491 courts in England and Wales. Now, 170 years later, the estate has diminished to 173 county court buildings. Civil courts are no longer so easily accessible and rarely occupy a place centrally in the community as they did in the past. Yet, the number of cases going to trial has also diminished and the number of alternative dispute resolution processes has increased: ombudsman and unregulated providers. As processes change so does their role. The building is no longer physically accessible but nor is it financially accessible to most, due to the lack of legal aid and increases in court fees that have been introduced by successive government policies. The system is no longer fit for purpose.

So, is it possible then to design an alternative system for small, low value cases using online tools that might operate to support court users through the legal system in a way that the system in operation in the court building never could? This was a question asked of a group of us who formed the Civil Justice Council Online Dispute Resolution Advisory Group a couple of years ago. We recommended the creation of an online court with online judges and online facilitators or mediators as well as an initial stage offering online information and help. Such changes were supported by the Master of the Rolls, John Dyson LJ, who described our report as a catalyst for far-reaching reforms. As a potential solution to similar problems described above, online courts are being contemplated in various forms across the world.

In British Columbia, Canada, for example, the new online small claims process has replaced the court building with an end-to-end process which provides legal advice and direction, mediation and the potential for an online judge. In the UK, plans are now afoot for cases under £25,000 to be referred to an ‘Online Solutions Court’ which will integrate three distinct stages of justice. In our ODR Report, we said that ODR was not science fiction. It proved that this was the case because the UK Government committed £700M to fully digitalise the courts, and to reform the legal system. Currently, HMCTS in the UK is embarking on the most ambitious programme of reform which embodies the ‘Online Solutions Court’ and other agile, digital by default reforms, currently in beta testing phase but soon to be launched across England and Wales.

Online dispute resolution has many of the qualities offered by ADR. Designers of current ODR systems tend to focus on the needs of the user and to facilitate these needs through the creation of pathways along which a litigant will travel, answering questions to personalise the experience, and to help specify the sort of actions required to meet the challenges of the legal system. As with ADR, ODR attempts to facilitate and empower, albeit not through face-to-face processes. ODR has the potential to offer a different service: a series of pathways and gateways through the legal system, with the opportunity for the user to ask questions, or to have terms defined as they arise. In England and Wales, the proposal is for a facilitator to attempt to mediate the dispute before it goes before an online judge. Yet, the system itself exists as a form of ADR, because the technology operates as a form of ‘fourth estate’ to enable resolution where possible, or provide information along the way. The very idea of introducing ODR precipitates a debate on many aspects of what the online court looks like; how it meets the demands of the rule of law, and what needs to change to give better access to justice. The role of public legal education and assistance become vitally important in a system which is not designed around the assumption of legal representation. The architecture of dispute resolution is not impeded by the introduction of ODR but instead it offers an opportunity to re-examine the court process and to see that what happens outside the building is as important, if not more important, as in the hearing room itself.

Keeping up with change: No Alternative to teaching ADR in clinic. An Australian perspective

Posted on 21/12/2017 by Dr Olivia Rundle

This post was written by Jacqueline Weinberg from Monash University and is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017

Jackie Weinberg

Over the last 30 years alternative dispute resolution (ADR) has become more prominent in Australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. There is a shift away from adjudicative or determinative processes and towards more cooperative processes for dispute resolution.[1] The rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few in society.[2] The incapacity of these structures to resolve conflict, although they may determine rights, has been a relevant factor in the development of alternative options for dispute resolution.[3] Clearly, Australian legal practice is undergoing change. As legal educators, we need to ask: how should we be preparing law students entering practice for these changes? How can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution?

Richard Susskind in his book Tomorrow’s Lawyers [4] states that law schools cannot ignore future practice and law students should be provided with options, to study current and future trends in legal services and to learn some key 21^st century legal skills that will support future law jobs.[5] ADR is a growing area of legal practice resulting in changes in models of client service and advocacy.[6] The issue then is how best to prepare the young lawyers for these changes. According to Sourdin, legal academics (and law schools) play an essential role in the training and education of lawyers and in interpreting these changes.[7] Sourdin sees legal education and training as ‘a continuum along which the skills and values of the competent lawyer are developed.’[8] There is a need to explore whether clinical legal education is taking these changes on board and moving away from teaching traditional adversarial models towards teaching a more ADR skills based curriculum. There is a need to look more closely at whether the ‘interconnect’ between the teaching and practice of ADR is in fact happening in clinics; if so, how this teaching is happening; including an examination of clinical curricula. If it is established that this teaching is taking place, then research needs to be done to determine in what ways this teaching can be enhanced in the clinical context and whether it is contributing to students’ knowledge of non-adversarial approaches towards conflict resolution.

According to Sourdin, ‘changes to the law school education environment supporting ADR in a realistic, rather than marginal way should mean that there is a greater chance that law school education in Australia into the future will be both relevant and supportive of respectful dispute resolution in its traditional and alternative forms.’[9] Clinical scholars view clinical legal education as a method of learning and teaching law.[10] It includes teaching about skills as well as the broader legal system.[11] ADR has become a part of the legal system both in Australia and internationally. If clinical legal education is to teach students about the skills needed for practice then it follows that a focus on the teaching and learning of ADR skills is needed. Extensive research has shown that ADR has an important role in legal education. It places emphasis on a non-adversarial process of resolving conflict and provides lawyers with the knowledge and skills to engage with legal problems in a holistic manner. Law students engaged in clinical practice who understand and adopt these processes will become lawyers who focus first on client’s needs and interests when problem solving and resort to adversarial practice only when necessary. In this way, clinical legal education can ensure that law students are well prepared for their roles as ‘new lawyers’ in 21^st century legal practice.

My PhD research is focusing on whether ADR is being sufficiently taught to students in existing clinical legal education courses in Australia. My research explores whether and to what extent ADR is integrated into clinical legal education across Australia and how the teaching of ADR within clinics might be strengthened. Although this research is primarily undertaken at Australian clinics, it will assist with learning and teaching strategies in relation to clinical legal education as a whole and has relevance for all clinical legal education contexts. This research will assist with curriculum review in relation to clinical legal education in law schools.

[1] Tania Sourdin, Alternative Dispute Resolution (LBC Thomsons, 5th ed, 2015) 13

[2] Ibid 12

[3] Ibid.

[4] Susskind R, Tomorrow’s Lawyers, 2013, Oxford University Press 135

[5] Ibid.

[6] Macfarlane, J The New Lawyer: How Settlement is Transforming the Practice of Law

(UBC Vancouver 2008 Macfarlane, 243

[7] Sourdin, above 1 5

[8] Ibid.

[9] Ibid.

[10] Evans, A, Cody, A, Copeland A, Giddings, J, Noone M.A & Rice S, Best Practices

Australian Clinical Legal Education Office of Teaching and Learning 2013 40

[11] Ibid 41

The central role of party self-determination in mediation ethics

Posted on 19/12/2017 by Jonathan Crowe

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.

Challenges and opportunities identified through an attempt to systematically capture DR research reports

Posted on 15/12/2017 by Dr Olivia Rundle

This post is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017.

word cloud my presentation notes

The aim of my project is to identify hidden knowledge about methods that do and don’t work in capturing data from end users (clients) of dispute resolution processes. If we are serious about measuring the quality, effect, and experience of DR, then we need to gather data from the people for whom these services are provided. There are, however, many challenges to gathering that data, which I explored in the earlier stage of my research project at the 2016 Roundtable. Some of these challenges are related to the DR process itself – an often stressful experience about which clients may be (a) unwilling to speak about for research purposes or (b) unable to reflect upon dispassionately. There are barriers of ethics, reliance upon third parties to gather data, and then for service providers who gather data routinely, there are often limited resources to actually systematically analyse that data.

At the 2017 ADRRN Roundtable I reported the next stage of my project. Since the 2016 Roundtable I have engaged a research assistant to conduct a systematic literature review, reworked my proposed interview questions, and conducted some pilot interviews with DR researchers about their experiences gathering data from end users / clients. This post will focus upon what I learnt through the attempt to conduct a systematic literature review.

An account of a systematic literature review

I set out to gather relevant literature through a systematic approach that was designed to capture research conducted in Australia that involved the gathering of data from end users/ clients of DR processes. I enlisted the assistance of my law librarian and met with her and my research assistant to design the systematic literature review. A variety of databases and search terms were used. I wanted to have confidence that this would identify all of the relevant research reports that already exist. The main problem that I have faced is that the “systematic” review simply hasn’t identified all of the relevant literature. I am aware of some resources that I identified earlier in the project (through non-systematic searching) and also reported in the appendix of Tania Sourdin’s Alternative Dispute Resolution (Thomsen Reuters, 5th ed, 2016), which were not captured. My research assistant found that the search terms that we had planned often failed to limit results to material that met our criteria of Australian research in the DR area that included data gathered from clients / end users. He spent a lot of time wading through material that did not meet our research criteria. The result of the review was that 43 relevant reports of research were identified.

On reflection, there are a number of possible reasons why the “systematic” review conducted in accordance with the conventions of traditional legal academic research has not achieved the result that I hoped to achieve.

The database searches privileged peer reviewed journal articles. Not all DR research involving data from clients / end users is published in peer review journal articles. It is likely that most of the data gathered from DR clients / end users is not gathered or analysed by academics. Non-academics are unlikely to be motivated to publish in peer review journals, which mostly sit behind paywalls. Instead, open access self-publication, reports to funders, and internal reporting are likely to be frequent destinations for research. These kinds of publications were not captured by the systematic review.
There is possibly a wealth of client / end user data being collected, but much of it is either not analysed at all or only analysed for confidential purposes. Most service providers conduct research to capture feedback from their clients. These data may never be systematically analysed and even when analysis occurs, there may be no public output from the research. “In house” evaluations may be conducted for purposes of quality assurance, reflective practice, and performance management. These purposes are not enhanced by making research results available publicly, and commercial interests may be compromised by publishing client feedback data.
Even where DR research is published in peer review journals, there are few discipline specific publication destinations (particularly those considered by universities to be prestigious), resulting in a scattering of publications. It may be difficult to locate relevant literature because DR researchers publish across a broad spectrum of publications. Each journal has its own preferences in relation to reporting of research method, language and style. This could potentially have affected the ability of the systematic approach to capture all relevant literature.

The purpose of locating existing research reports was so that I could review the methods of recruitment of DR clients / end users and data capture that researchers have used. In the literature that I have identified so far, although relevant data were used as a foundation for the findings reported, the method of recruitment of participants and capturing of the data were not always explained. This possibly reflects the tradition in legal research of not reporting methods clearly, and the preferred style of some journals, which have strict word limits and may not value detailed accounts of research method. Often research reported in peer reviewed journal articles is reported in greater detail in non-peer reviewed reports. These were not always readily available when I tried to locate them.

Next steps

It is clear that there is a vast amount of grey literature available that is not necessarily captured through subscribed databases. My next steps will involve new search strategies that will capture a broader range of literature. My pilot interviews and interviews with DR researchers about their experiences capturing data from end users will also be an opportunity to identify research reports that may not have come to my attention through my searches.

My reflections on the data that remains hidden within organisations has caused me to wonder how those of us in academia can better engage with industry. DR service providers are often able to achieve very high response rates that are difficult for independent researchers to achieve. I believe that there are opportunities for academic researchers to build better working partnerships with industry, with all parties exploring the skills and resources that they can offer one another.

The experience has also highlighted a need for a comprehensive, well funded clearing house of DR research reports, which would provide a portal through which prior DR research can be more readily located. A significant initial investment would need to be followed by funding for ongoing maintenance, but there could be great benefits to clients, practitioners, organisations and researchers working the DR field. I am percolating ideas about how to pursue this idea and would welcome any offers of assistance.

What’s in a frame? Power, control and desire in the experience of family mediation.

Posted on 13/12/2017 by jillhowiesonuwaeduau

picture-frame-427233_1920

We bring our readers another blog post, written by Assoc Prof Jill Howieson. The post is version of paper presented at the just concluded ADR Research Network Roundtable, 4 -5- December 2017 #ADRRN2017. Happy reading!

“By the tragic gap I mean the gap between the hard realities around us and what we know is possible — not because we wish it were so, but because we’ve seen it with our own eyes.” —Parker J. Palmer

In 2011, I wrote on the Kluwer Mediation blog. I wrote about the same transcripts from the family mediations that I have analysed for this paper. In 2011, I wrote that I was reading about desire in these transcripts. I had returned to my 1985 language, literature and culture textbook, Modern Literary Theory, and to psychoanalytic and linguistic theories to try to understand what I was reading.

I was drawn particularly to Lacan and Foucault, and their analysis of language. A few years on and Parker J Palmer captivates me with his notion of the tragic gap –“the gap between the hard realities around us and what we know is possible.

Now these concepts converge. Jacques Lacan’s lack, or the “endless chain of signifiers” that we use in pursuit of a ‘real’ satisfaction or desire; Michel Foucault’s recognisable objects (or hierarchies) of importance, and the practices that derive from them that we create to uphold power; and Parker J Palmer’s tension gap, where we “faithfully hold the tension between reality and possibility.” These are all concepts that can inform our understandings about mediation.

Firstly, I wondered if we as mediators do not ‘faithfully hold the tension’; namely, the tension between what parties say they want and what they desire. The present analyses of the transcripts suggests that mediators can create tight frames for their mediation discourses and thereby impose a control on the parties’ language, and thus on their needs and desires – or at least their acknowledgement of their needs and desires.

The Foucauldian analysis alerted us to the power that mediators can create through their language. It showed that a mediator’s language could create recognisable objects or hierarchies of importance, which has the effect of elevating these objects and giving them power. The mediators in the study were able to elevate the status of various ‘objects’ including the notion of ‘good parents’ who will compromise and come to agreements, and parents who displayed calm rational ways of disputing or negotiating through their choice of words. By elevating these objects, the mediators could control the practices that flowed from them. For instance, where the mediators accorded importance to the notion of ‘good parents’ and excluded ‘naughty parents’ from the discourse, this empowered the mediators to push the ‘naughty parents’ into attending child-focussed sessions.

Further, with their language, the mediators seemed to create frameworks for the mediation that would cause the parties to work within those discoursal frames. Through a repetition of Court-focused words, the mediators created court-focused frames, which had the effect of creating fear in the parties and empowered the mediators to push for agreement (to keep the parties out of court). The parties would follow the mediator’s language and tailor their conversation to suit regardless of whether this was where they wanted to go or not. For instance, a discoursal frame of court had the result of moving the parties towards plans and agreements, and took them away from their ‘real’ fears and desires.

Further, the results revealed that mediators would listen according to their mediation orientation. If mediators worked within a settlement orientated frame, then they would listen for agreements or signals that might lead to agreements and use interventions to suit, such as writing options on the whiteboard and recording agreements. On the other hand, mediators working within a ‘best interests of the child’ framework would listen for examples about the child’s perspective and how the children might be experiencing the separation, and then choose child-focussed interventions to encourage the parents to think of themselves as parents rather than as disputants.

Essentially, it seemed that despite their best intentions, the mediators would often miss the real desires of the parties and/or ignore the power discourse that they were creating as they pushed towards certain outcomes rather than sitting in the process tension of possibility.

According to Lacan, needs, if left unattended (or are reframed), do not disappear but turn into desire. In 2011, I asked what language in mediation do we have to address the parties’ unmet needs and desires. Now, I ask, how do we even hear these desires and needs when we mask them so well with our own desires for outcomes?

If we want to hear the desires of the parties (and I am not saying that all mediators do) then we need to begin to listen differently. We need to listen for the structures of desire in mediation that tell us what it is that the parties crave. We need to sit in the process-outcome tension and listen to the repetitions; the patterns and the experience of the parties so that they can access their true selves and their true desires, and then tell us what these are if they need to.

The Lacanian analysis revealed that the parties would often repeat words or patterns of words that would give ideas about their desires:

their attachment desires (I haven’t found someone worth living with and having my children involved with; I don’t live with somebody that helps me share my rent, helps me share my bills).

desire to be a good parent or better person (But that will change in the next … probably ten weeks…that will change), or

a desire to give the children what they perceived they needed (I’ve always said to M and to a mediator that assessed me …They’re four boys. They need their dad).

These examples of repetition occurred within conversations about which school the children would go to and who would pay for the children’s after-school sport activities—they were not so easily identifiable as desires.

So, what do parties say as they seek attachment to calm their unattached selves, or calmness to keep their selves intact in the chaos of conflict? What hidden desires does their language conceal? In the transcripts, there were prolonged, sometimes nonsensical discussions about the location, denomination and even the principal of the children’s schools—signifiers perhaps? There were discussions about the children’s dental plan or child payments —masquerading as desires for closure and the ‘gestalt’ perhaps?

We can never really know, but we can guess. We can sit in the tension gap of the unfolding of meanings and the ongoing and reflexive nature of mediation. The research shows that mediators tend to focus on the agreements more so than the parties do. The parties’ conversations tended more towards an articulation of what they were experiencing rather than towards concrete agreements. We could look at the relationship between language, outcomes and experience more closely. As Parker J Palmer writes, tension in life is ‘inevitable, inexorable, [and] inescapable’. We could use this tension and assist the parties to make meaning out of their situations, actions and desires; to move from the jumble of conflict – the chaos – to the destination of desire, or at least understanding their desire; to make meaning in the disorganised realm, whether of experience or thought, and sort this out into an understanding of needs.

But, what mediation language do we use? What do we use as signifiers? And what desire is repressed as we substitute our language of desire for the language of courts, or child development or parties’ needs?

In 2011, I wondered whether, in every mediation, we were selling ourselves short. I wondered whether, with our future focus, our discourse of agreement, as we shape and mould, whether we were trying to camouflage that which is continually trying to show itself – our gaps, our cracks, our ugliness, our humanity, our beauty, our desires! I think in 2017, the answer might be a resounding yes.

Bringing litigants in from the cold: involving litigants in initial civil court case management

Posted on 04/12/2017 by civiljusticewatch

This post written by Dr Bridgette Toy-Cronin is a blog version of paper delivered at the ADR Research Network 6th Annual Roundtable, 4-5 December 2017. You can follow the forum on Twitter at #ADRRN17

Once a case is filed in court, settlement commonly occurs at the eleventh hour, just as the case is about to go to trial. By that time a lot of money, time, and energy has usually been spent by all involved. So how do we encourage parties to settle earlier? Or, if they can’t settle, how can we refine the trial issues so the case moves efficiently to trial?

To encourage settlement, courts have tried various different methods including compulsory mediation before filing, judge-led settlement conferences, and court annexed mediation. The New Zealand High Court has moved away from those initiatives, preferring to leave mediation and negotiation as a private matter between parties and focusing its resources on its main job, adjudication. When faced with the huge number of claims generated by the Canterbury Earthquakes though, it re-introduced an initiative it had briefly tried previously, an initial case management conference where the litigants themselves (whether or not they are represented) must attend. The idea is to get the litigants, lawyers, and the judge around a table for a meeting to engage with each other, face to face, and to articulate their objectives for the litigation and the main issues for trial. Nina Khouri whose paper on the Canterbury Earthquake List has been published in the Civil Justice Quarterly,[1] emphasises that this process sets the stage for both effective early dispute resolution and for efficient litigation. Early resolution or efficient litigation is a win-win for the courts and the litigants.

The process has a number of other potential benefits as well. For unrepresented litigants, an initial conference with the Judge is a chance to establish constructive communication with the opposing party and become oriented to the litigation process. For represented litigants, it is a chance to have direct interaction with the court and consider the goals for the litigation, the potential for achieving them, and the cost of doing so. (This is particularly important if the litigant’s lawyer has not performed this function – not all lawyers are created equal). For the court, it is an opportunity to communicate its expectations and the likely timeframes for the progress of litigation. It also provides a structured opportunity for the court to establish the expectation that parties will engage in settlement discussions and opens the door for that to happen. This is a more principled forum for doing this than the informal mechanisms some judges use of putting “heat” on litigants to settle as the litigation is progressing. While some “heat” might result in settlements, it can also leave litigants feeling confused and pressured, an issue I blogged about recently.

As with previous attempts at the rule, the requirement that litigants attend the case management conference has been dropped from the Canterbury Earthquake List. The major reason was the cost involved. These conferences take up a great deal of judicial time and the court did not consider it had the resources to continue staffing them. The other reason offered was that lawyers became familiar with the case management process and each other, and were “able to resolve many preliminary matters by consent on a routine basis” (Khouri at 346). Underlying these explanations may be deeper reasons for why these conferences have not been a “sticky” procedural rule. These reasons include:

Judicial resistance to more onerous forms of managerial judging, particularly when there is significant ‘emotion work’ in these conferences and they lack the purity and therefore prestige of more traditional judicial work of hearing trials and writing judgments;
Lawyers’ resistance to a form of conference that interrupts the traditional dynamic of the lawyer being the interface between the client and the court. These conferences may be difficult for a lawyer to manage, as the client participates directly, without the ability of the lawyer to filter or shield the client’s position.

I suspect that these are equally powerful reasons for the failure of the case management conference that includes litigants, than the ones stated. If the conferences do offer the benefits they promise, how can we overcome the cycle of introducing them and then either not using them or informally dropping the requirement for litigants to attend?

One method would be to do a Randomised Control Trial. The Access to Justice Lab at Harvard is a big proponent of this method and while I don’t think it would work in many legal settings this might just be an ideal situation. The idea is that when proceedings are filed they are randomised to either a traditional case management conference or one where litigants must attend. Data could then be collected about the progress of the proceeding. So, a timeline would be created for each case to see if it settled and if so when. If it went to trial, how long did it take to get to trial? To measure whether or not the type of case management conference made a difference to the refinement of trial issues, the trial length could be used as a proxy or the final pleadings could be used to compare the number of causes of action. This would obviously need to be in partnership with the courts who would collect the data and ensure the right type of case management conference was used in accordance with the randomisation. The big payoff would be some empirical data about whether the case management conference involving the litigants really has the benefits it intuitively suggests it may have.

[1] Khouri, N. C. (2017). Civil justice responses to natural disaster: New Zealand’s Christchurch High Court Earthquake List. Civil Justice Quarterly, 36 (3)