Vol. 9.4 December 2005


Council of Europe, The Early Settlement of Disputes and the Role of Judges, 1st European Conference of Judges (Strasbourg: Council of Europe Publishing, 2005), 156 pp., ISBN 92-871-5704-9, EUR 19 (paperback).

Ever since humans have set foot on earth, there have been disputes. And ever since there have been disputes, there has been the need – and the desire – to establish peaceful and coordinated settlement mechanisms. Today, a large variety of such mechanisms is in place. Apart from the public court system offered by all modern states, arbitration proceedings, ombudsman schemes, consumer complaint schemes and mediation schemes vie for the attention of potential plaintiffs. They all have in common that they seek to establish an alternative to going to court by providing a cost-effective and quick extra-judicial dispute resolution mechanism through processes tailored to the particular needs of the parties. However, in times of scarce financial and personnel means the public has become aware that cost-effectiveness and efficient case management must not remain a privilege of alternative dispute resolution schemes. Therefore, many countries have enacted reform laws designed to enhance efficiency and transparency of the civil justice system. In Germany, for example, the Gesetz zur Reform des Zivilprozesses (Law on the Reform of Civil Procedure) of 27 July 2001,[1] in force since 1 January 2002, has effectively streamlined civil proceedings at all instances, curtailed the availability as well as the scope of appeals and strengthened the obligation of courts to work towards an amicable settlement of disputes.[2]

At the European level, the Consultative Council of European Judges, an advisory body of the Council of Europe on issues related to independence, impartiality and competence of judges, has long taken note of the need to offer efficient dispute resolution schemes not only outside but also within the public court system. However, it has also taken note of an apparent lack of discussion at the level of the judiciary about the legal and procedural issues involved. In 2003, the Consultative Council of European Judges, therefore, decided to organize a conference designed to provide a forum for the exchange of views on the part judges can play in the efficient resolution of disputes. In The Early Settlement of Disputes and the Role of Judges the speeches delivered are reprinted as well as the conclusions adopted at the 1st European Conference of Judges (hereinafter ‘the Conference’) held in Strasbourg (France) from 24 to 25 November 2003.[3] Furthermore, the book comprises six articles and four recommendations of the Council of Europe dealing with mediation.

The book is divided into five parts. The first part – ‘opening speeches’ – reprints the welcoming address by Guy de Vel (Director General of Legal Affairs, Council of Europe)[4] as well as the introductory remarks by The Right Honourable Lord Justice Mance (Court of Appeal of England and Wales, United Kingdom).[5] The second part – ‘reports’ – reproduces the eight speeches that were delivered and discussed at the Conference. As the title of the book indicates, they address the role of judges in the settlement of disputes and tackle the question how judges can encourage and contribute to an amicable resolution of disputes. However, the speeches also deal with effective case management in general, means to accelerate civil proceedings, summary proceedings and provisional protective measures. As none of these issues is usually associated with the settlement of disputes – the title of the book – this choice of focus comes as a surprise. However, more irritating than the incongruity of the book’s title with its content is that the speeches are not arranged by the issues they address, but rather by the order in which they were delivered at the conference. This leads to a rather confusing alternation of articles dealing with the role of judges in the settlement of disputes and articles discussing the acceleration of civil proceedings, summary proceedings or provisional protective measures.

The first speech that is reprinted in the second part was held by Veniamin Yakovlev (President of the Supreme Economic Court of the Russian Federation).[6] Yakovlev deals with dispute settlement in Russia and provides an overview of the Procedural Code of the Russian Federation on Arbitration, which was enacted in 2002. He points to the provisions that require judges to encourage the use of conciliation schemes, most importantly arbitration, and elaborates on the statutory norms that provide incentives for the parties to settle disputes out of court. The second speech, delivered by Alain Lacabarats (President of a Division of the Court of Appeal, Paris, France), jumps to the issue of provisional protective measures and elaborates on the so-called urgent procedure under the French Code of Civil Procedure designed to grant interim relief where the interests of the parties need protection.[7] A more European approach is taken in the third speech by Raffaele Sabato (Judge, Court of Naples, Italy). He tackles the issue of provisional protective measures from a comparative perspective and additionally covers general means to accelerate civil litigation, such as time limits and summary proceedings.[8] The fourth speech, by Lars Oftedal Broch (Judge, Supreme Court of Justice, Norway), describes the means of accelerating litigation applied by the new Norwegian Draft Act on Dispute Resolution.[9] The fifth speech, made by Aleš Zalar (President of the District Court of Ljubljana, Slovenia), returns to the question of the role of judges in the settlement of disputes and describes different means available to judges to encourage an early amicable resolution.[10] Zalar points to national provisions that render conciliation attempts and settlement conferences a mandatory part of a civil lawsuit or allow judges to intervene actively in the search for amicable agreements between the parties. He also describes the importance of active and differentiated case management by judges for the efficient disposition of lawsuits in general and the settlement of disputes in particular. A more specific look at the role of judges in the settlement of disputes is taken by Louise Otis (Justice, Court of Appeal, Quebec, Canada) in her speech.[11] She essentially discusses the experience of the Quebec Court of Appeal with judicial mediation, i.e. court-assisted mediation within the framework of the state-controlled judicial system as opposed to out-of-court mediation. In the last speech, Peter Lampe (President of the District Court of Maastricht, Netherlands) returns to the issue of acceleration of civil litigation in general and describes the experience of the Netherlands with accelerated and summary proceedings.[12]

The third part – ‘written contributions’ – comprises articles that were not presented or discussed at the Conference. They provide very brief and cursory insights into court assisted or court ordered mediation schemes in various European countries, notably England, [13] Italy,[14] France,[15] Finland,[16] Switzerland[17] and Cyprus[18]. The fourth part – ‘summary report’ – contains a brief review of the Conference delivered by The Right Honourable Lord Justice Mance (Court of Appeal of England and Wales, United Kingdom). The fifth part – ‘conclusions’ – restates the suggestions adopted at the Conference. They can be summarized to the effect that the participants encourage the further exchange of ideas on the issues discussed at the Conference as well as the promotion of an early settlement of disputes through the Council of Europe and the Consultative Council of European Judges. The book concludes with an ‘appendix’ stating four Recommendations of the Council of Europe on (Recommendation No. R. (98) 1 on Family Mediation, Recommendation No. R. (98) 19 concerning Mediation in Penal Matters; Recommendation Rec (2001) 9 on Alternatives to Litigation between Administrative Authorities and Private Parties; Recommendation Rec (2002) 10 on Mediation in Civil Matters).

All in all, the book provides a first, but rather cursory insight into the mechanisms various European countries have recently adopted in order to enhance the efficiency of their civil justice systems. It shows that legal orders across Europe encourage and require judges to work towards dispute resolution by way of settlement, conciliation, mediation or arbitration. It also proves that – at a time of scarce financial and personnel means – the importance of efficient case management as well as efficient alternative dispute mechanisms is steadily growing. In other respects, however, the book does not add very much to the existing literature. As the reports and the written contributions are, for the most part, very short and lack references or footnotes,[19] it provides neither a solid basis of information nor a starting point for further research on the topics covered. The book’s value, therefore, is essentially limited to the documentation of the 1st European Conference of Judges supplemented by some brief contributions about court-assisted and court-ordered mediation.

Giesela Rühl,
Senior Research Fellow,
Max-Planck-Institute for Foreign Private and Private International Law,
Hamburg



Notes

1. Bundesgesetzblatt I 2001, pp. 1887 et seq.

2. For a detailed discussion, see Giesela Rühl, ‘Preparing Germany for the 21st Century: The Reform of the Code of Civil Procedure’, 6 German Law Journal (2005), No. 6, 909-942, available at http://www.germanlawjournal.com/pdf/Vol06No06/PDF_Vol_06_No_06_Articles_909-942_Ruehl.pdf.

3. The 2nd European Conference of Judges took place in Cracow (Poland) from 25 to 26 April 2005. It was dedicated to the rule of law and the protection of human rights and sought to identify approaches that states can take to strike a balance in the relationship between justice and the media. More information on this Conference is available on the Council of Europe’s website at http://www.coe.int.

4. Guy de Vel, ‘Opening Speech’, pp. 15-18.

5. The Right Honourable Lord Justice Mance, ‘Overview’, at pp. 15-18.

6. Veniamin Yakovlev, ‘Why Judges Must Help Parties to Achieve Prompt Settlement of Disputes’, at pp. 33-35.

7. Alain Lacarabarts, ‘Early Settlement of Disputes: Urgent Procedure in French Law’, at pp. 37-41.

8. Raffaele Sabato, ‘Protection of the Parties’ Cases and Evidence, Time Limits, Accelerated and Summary Procedures and Interlocutory Judgments’, at pp. 43-50.

9. Lars Oftedal Broch, ‘Protection of the Parties’ Cases and Evidence, Time Limits, Accelerated and Summary Procedures and Interlocutory Judgments: The Norwegian Perspective’, at pp. 51-56.

10. Aleš Zalar, ‘Legislative and Judicial Incentives to Early (Amicable) Resolution’, at pp. 57-65.

11. Louise Otis, ‘Alternative Dispute Resolution: Judicial Mediation’, at pp. 67-75.

12. Peter Lampe, ‘Case Management: A Pro-Active and Innovative but Impartial Judiciary’, at pp. 77-82.

13. Tony Allen and Eileen Carroll, ‘Court-Ordered Mediation in England and Wales’, at pp. 85-89.

14. Francesco Benigni, ‘Alternative Dispute Resolution: Mediation in Italy – Is It Really Moving?’, at pp. 91-93.

15. Béatrice Brenneur, ‘Exemples de médiation judiciaire dans les conflits individuels pratiquées à Grenoble’, at p. 95.

16. Teuri Brunila, ‘The Present Law concerning Settlement in Procedure and the Law Proposal about Separate Court Mediation in Finland’, at pp. 97-100. Brunila’s contribution is limited to a mere reproduction of the new Finnish Law in the English language. There are no explanations or comments.

17. Jean A. Mirimanoff, ‘Procédure civile et processus de médiation. Passer d’un mode à l’autre, sans en altérer la nature’, at pp. 101-110.

18. Stelios Nathanael, ‘Written Contribution’, at pp. 111-112.

19. Noteworthy exceptions are the speeches by Aleš Zalar (supra note 10) and Louise Otis (supra note 11).



Cite as: Giesela Rühl, Review of Council of Europe, The Early Settlement of Disputes and the Role of Judges, 1st European Conference of Judges, vol. 9.4 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2005), <http://www.ejcl.org/94/review94-2.html>.

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