Challenges in Applying Non-Adversarial and Therapeutic Justice in Court Systems – The Israeli Example

Dr Karni Perlman1

1Striks School of Law, College of Management Academic Studies, , Israel

The lecture will address some prominent achievements and challenges involved in the implementation of a non-adversarial and therapeutic approach in judicial courts. It will do so based on the example of the Israeli court system. The discussion will focus on two projects: The first project is that of settlement judging, known in the Israeli court system as “Cross-Judicial Mediation”, which was implemented in both civil and criminal disputes; the second is that of an obligatory ADR meeting instituted by family dispute assistance units. A discussion of these projects may illuminate and support the implementation of Non-Adversarial and Therapeutic Justice in other court systems.

In the context of the first project, judge A would receive files that were under the responsibility of judge B, and conduct a special proceeding aimed at resolving the dispute by way of settlement. If the dispute wasn’t resolved by settlement it was transferred back to the original judge to handle and resolve with a binding verdict. The project began as a local initiative at some of the larger courts in Israel. It grew from the bottom up, as a consequence of the needs of the system and recognition of the advantages of the non-adversarial approach to the management and settlement of disputes. It was not directed by any top-down arrangements or guidelines, as it was not anchored in law. This fact gave rise to few problems concerning tensions between the needs of the system and the higher echelons charged with supervising it; between the desire to promote quality and efficiency in the management of disputes, which mainly came from the field, and the need to provide legally established regulation and uniform organizational guidelines. These tensions ultimately found expression in the objections of the Ombudsman of the Israeli judiciary to the project, which eventually led to the termination of the project in the hearing of civil disputes. A decision that was met with disapproval on the part the judges themselves. The Ombudsman’s decision to shut down the project in civil cases also gave rise to an anomaly, since it was contrary to a Supreme Court verdict that discussed the right of a victim to participate in a criminal judicial mediation proceeding, and in fact validated the project and outlined its characteristics in the area of severe criminal offenses.

The second project is an interesting and relatively new project being implemented in Israel’s civil and religious courts. In the context of this project, litigants involved in a family dispute are obliged to attend a preliminary meeting in order to receive information about alternative proceedings to adjudication, in the aim of settling the family dispute in a non-adversarial attitude. These meetings are attended by the therapeutic team present in special assistance units affiliated with these courts. A number of assistance units were established at religious courts for the specific purpose of implementing this law. The law’s original bill stated that four meetings may take place in order to help manage the dispute in a non-adversarial way, and that the parties will participate in these meetings without their attorneys. Moreover, regulations (though not the main law) that were instituted in order to promote the implementation of this project, provided the first legal basis in Israeli law for a collaborative divorce proceeding. In this context, tension arose between the desire to make beneficial use of the therapeutic approach in family disputes, and the position of the Israeli Bar Association which objected to meetings being held without the parties’ attorneys. Further tension was created by the clash between the State’s desire to promote an advanced conception of dispute resolution and the concern of the religious courts lest they lose their jurisdiction in matters of marriage and divorce. A specific lesson learned from this project was the possibility of practically promoting projects via secondary legislation as compared with the complications inherent in enacting laws via primary legislation.

Biography:

Dr. Karni Perlman is a Professor of Law and the head of the Non-Adversarial and Therapeutic Justice Center at the Striks School of Law, College of Management Academic Studies, Israel. Perlman’s book, “Conflict Resolution – Applying Non-Adversarial and Therapeutic Justice” has been recently published (in Hebrew). The book introduces important transformations that have taken place in the content of judges’ roles as dispute settlers and explains the nature of settlement judging and therapeutic judging. It also describes the change that is taking place in the content of lawyers’ roles.  Perlman is the author of various academic articles and other publications concerning Alternative Dispute Resolution, Therapeutic Jurisprudence, Settlement Judging and Judicial Dispute Resolution, Problem-Solver Lawyers, Procedural Justice, Mediation, Gender, Legal Education and more.  Perlman also teaches Conflict Resolution at Tel-Aviv University. She is the founder and former chairperson of the first Israel academic mediation center.  Perlman is a well-known mediator who actively mediates cases in the field of commercial and labor law. She serves as the coach of the Striks School of Law student team participating in an international competition of clients’ representation in mediation sessions.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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