MULTILEVEL ACCESS TO JUSTICE IN A WORLD OF VANISHING TRIALS: A CONFLICT RESOLUTION PERSPECTIVE.

• Author: Cohen, Hadas

Introduction 2 I. Access to Justice and Vanishing Trials 4 A. The Background of Access to Justice 4 B. The ADR Movement 9 C. The Dispute Perspective 12 D. Vanishing Trials 14 II. The Multilevel Model of the Development of Disputes and Access 17 to Justice A. The UNPIE Stage 18 B. Early Stages of Naming and Blaming 19 C. Entrance to Court: Institutional Management 21 D. Court-Annexed ADR 22 E. Pretrial Hearings 22 F. The Trial Stage 23 G. The Verdict Stage 24 H. The Execution of the Verdict 25 I. Avoiding Future Conflicts and Implementing the Norm 25 III. ADR in Pretrial Hearings 26 IV. An "Ideal Type"? The Canadian Civil Code Declaration 36 Conclusion 41 INTRODUCTION

The search for access to justice for disempowered populations, in terms of gender, class, race or ethnicity, is central to many legal systems to help enable litigants to claim their rights under the institutions of the state; over time it has carried different meanings and implications. (1) This Article proposes a novel approach to access to justice by introducing a complex multilevel model to address the various stages of the development of legal conflicts in an age of vanishing trials. (2) It provides a nuanced understanding of various modes of access to justice that correspond to different needs of disempowered citizens before they enter the legal system and as they make their long journey within it. Parties trying to resolve disputes through the civil justice system nowadays end up drifting through an incoherent, inconsistent, and opaque process generally resulting in some form of reluctant compromise. (3) During this procedure, reliable data regarding expected case disposition and outcome (on the basis of similar cases) is not made available to the parties. (4) No systematic screening mechanism directs parties to holistic conflict resolution alternatives. (5) Accordingly, many people who initiate lawsuits normally find themselves within an adversarial and incoherent negotiation process in the shadow of the courts. (6) This problem is particularly true for unrepresented litigants, a growing population seeking access to justice in contemporary court systems. (7) It is also true for conflicts that never reach the court or go through any other legal procedure due to barriers of costliness and lack of access to legal information. (8)

To address the question of access to justice in an age of vanishing trials, this Article develops an interdisciplinary multilevel model in light of the failure of alternative dispute resolution (ADR) to become the prevailing paradigm for resolving conflicts against the backdrop of the decline of litigation. The model integrates theoretical insights from the ADR movement with methodology from law and society scholarship. This model addresses ways for improving access to justice during each stage of civil conflict, focusing specifically on the pretrial stage and settlement hearings, which today is the main public sphere for parties seeking justice. Our findings, based on comparative legal study as well as comparative court observations and interviews with judges, suggest that there are different models of framing access to justice in a world of vanishing trials. This Article proposes expanding the horizons of access to justice by adopting a modular multilevel model to enhance conflict resolution awareness. Further, this Article focuses on developing a judicial conflict resolution perspective for the stage of the preliminary hearing--a stage at which most civil cases settle today.

Part I of this Article provides an overview of the debate on access to justice in legal scholarship, outlining the differences between three perspectives on conflicts that were developed in the 1970s, and discussing contemporary challenges to access to justice in an age of vanishing trials. Part II presents our multilevel model of the development of the civil conflict. Using this model, which offers a broad perspective of conflict resolution, we discuss possible developments of the principle of access to justice based on a broad perspective of conflict resolution. Part III focuses on two specific stages of a civil legal conflict: the pretrial stage and use of ADR during the trial itself. It provides examples from the Israeli justice system, which is particularly pertinent for understanding the effect of vanishing trials on access to judicial discretion, as judges are granted inquisitorial powers that allow them an informal space for judicial conflict resolution activities. We add actual impressions, interviews, and findings from the ground to these examples. Furthermore, Part III reveals findings regarding perceptions of judges on their role in promoting access to justice within a settlement culture. Part IV presents an ideal model of access to justice, developed in Quebec, which is based on a conflict resolution perspective instead of adjudication and litigation as the main forms of justice. Part IV concludes by analyzing these findings and offers to implement our multilevel model in order to develop our access to justice perspective in an age of conflict resolution and vanishing trials.

1. ACCESS TO JUSTICE AND VANISHING TRIALS

   1. The Background of Access to Justice

      The concept of access to justice, which originated in the 18th century, at first centered around a narrow understanding of the "formal" right to self-representation, namely, the right to litigate and defend one's claim in court. (9) This right was perceived as fundamental, with no need for state affirmation. At the time, the state was not responsible for assisting those who could not afford proper legal help, and justice could be attained only by those who had adequate means. (10)

      In the mid-2Oth century, the access to justice movement evolved from a formal rights-centered approach to one focusing on the obligation of the state to provide an affordable, effective justice system accessible to all, including "ordinary people." (11) There was a widespread movement demanding rights for disempowered individuals and communities. This was done by helping people gain access to fair representation in the courts, lowering legal costs, and reducing delays and the complexity of the justice systems. (12) These new rights enable state-sponsored legal aid and law clinics to provide free legal representation for disadvantaged populations. (13)

      Moving forward, access to justice focused on procedural justice and the rights of litigants. In addition, it highlighted barriers in legal procedures including costly litigation--either direct expenses for legal counsel or other expenses associated with high-risk legal systems that operated under the "winner takes all" scheme by which the losing party paid the expenses of the winners (14)--and lengthy proceedings, since "late justice is bad justice." (15) Parties' inability to fairly litigate and their strategic disadvantages compared to their adversaries were also considered a significant barrier to access to justice. (16) Another obstacle to access to justice particularly pertinent for disempowered and disadvantaged litigants was legal literacy, namely, the legal knowledge needed to recognize enforceable legal rights. (17) Recently, the "erosion of meaningful consent" (18) has also been articulated as a significant barrier in light of mandatory legal mechanisms such as mediation and arbitration to which litigants are referred. Other factors that deprive access to justice include "one shot" litigants, who have the lower hand against "repeat player" litigants, with the latter enjoying various advantages such as litigation experience, knowledge of the law, or informal networks with decision makers. (19)

      The importance of the broader principle of access to justice was recognized in different places around the world, and the idea was implemented through various experimentations. One of the most significant was the Florence Project, a four-year comparative project led by Italian jurist Mauro Cappelletti in Florence, Italy in the 1970s. Cappelletti analyzed comparative global data, and the interdisciplinary Florence Project charted the historical evolution of access to justice and the legal mechanisms developed to implement it around the world, emphasizing its importance beyond both legal representation and the justice-seeking arenas of the courts. (20) Cappelletti further described the development of access to justice as related to a set of institutional reforms and the development of the welfare state, which strived to provide effective access to justice to the population. (21) The first wave manifested in the rise of the 1965 Office of Economic Opportunity's neighborhood reform program, which aimed to bring legal services to the poor. (22) The second wave extended the notion of representation of the "diffused interests" of interest groups, such as consumer groups or environmental players, and led to the establishment of U.S.-based public interest law firms that were supported by foundations. (23) The third wave represented attempts to tackle barriers to access to justice more comprehensively by going "beyond advocacy" and attempting to provide mechanisms to process and prevent disputes. (24)

      Current understanding of access to justice has come to conceptualize this principle as including both accessibility (access to courts that can offer litigants just results based on the law) and fairness in the legal process itself. In 2016, in an attempt to underscore the practical implications of these terms, a group of legal experts evaluated the effect of recent British legal reforms that were intended to enhance efficiency, introduce new technologies to modernize the justice system, make the legal process accessible to more users, and reduce costs on litigants' access to justice. (25) They set a four-component minimum standard. First, "[a]ccess to the formal legal system," (26) which must be "practical and effective" and not "theoretical and illusory,"...