Summary

This study focuses on the Dutch civil hearing (the comparitie na antwoord), which gained significantly in importance over the last few years. By far the most cases nowadays involve a comparitie. So far, little insight has been gained into the way judges manage these hearings and how lawyers and (primarily) parties experience them. This study aims to rectify that. The central research question this study attempts to answer is as follows:

What are the present hearing practices (for the comparitie na antwoord), in terms of effectiveness and justice, what are the opportunities for improvement, and what are best practices for the comparitie?

For the purposes of this study, effectiveness can be divided into two elements. The first concerns the extent to which the legai aims of the hearing (obtaining information from parties, exploring the scope for settlement, and discussing the subsequent steps of the procedure with parties) are fulfilled. The second concerns the personal aims which parties, lawyers, and judges formulate for the comparitie, and the extent to which these are fulfilled. Justice concerns the reactions of participants to structural aspects of the hearing (for example being able to tell their story, an impartial judge), the interpersonal treatment they receive from the judge, and the information they receive about the hearing. Whether participants felt the outcome was fair (distributive justice) was not investigated in this study, because the outcome was not always known immediately at the end of the hearing, when the experiences of parties and lawyers were measured.

A total of 150 comparities were investigated at two district courts to chart present hearing practices, through questionnaires, interviews, and observation schemes.

The first part of this book concerns the results of this empirical study (chapters 3 through 7) and the opportunities for improvement that it brought to light (chapter 8). The second part of the book is of a different nature. There, I will formulate best practices for judges presiding over comparities, based on effectiveness and justice (chapter 10). I drew inspiration from proposals for improvement (chapter 9) which were put forward in the Netherlands for the comparitie, and in Germany and the United States for comparable hearings. At the end of the book, I will provide a number of concluding remarks.

This chapter presents the main trends in justice studies that were conducted over the last 30 years. The aim of these studies was to determine what factors influence whether individuals who become involved in a (decision-making) procedure evaluate this experience as positive.

Until 1975, it was generally assumed that the evaluation of decision events was determined by the fairness of the outcome (distributive justice). Later research revealed those involved also appreciate being able to influence the procedure itself (procedural justice). Other aspects that were found to be important to participants were — apart from influencing the procedure — consistency, ability to suppress bias, decision quality or accuracy, correctability, and ethicality. Later, the importance of the quality of interpersonal treatment in allocative procedures came to light. This interactive justice was later subdivided into interpersonal justice (a polite and respectful treatment by the third party involved in the procedure), and informational justice (a clear explanation of the procedure and the outcomes). These seminal studies resulted in four different constructs of justice: distributive, procedural, interpersonal, and informational.

It is worth mentioning that there is still an ongoing debate in literature on whether justice is best measured according to two (distributive and procedural justice), three (distributive, procedural, and interactive justice), or four constructs (distributive, procedural, interpersonal, and informational justice).

This study used the validated questionnaire of Colquitt (2001), which is based on the most important justice studies of the last 30 years.

Finally, this chapter addresses why we should be bothered by the procedural justice evaluations of participants. Research has indicated that individuals’ fairness concerns influence the evaluations of specific outcomes (distributive justice perceptions), people’ s willingness to accept decisions of authorities, the satisfaction with the decision maker with whom an individual had a personal experience, their trust in the legal system and legal authorities, and the extent to which people comply with the law.

Before the hearing, parties and especially lawyers reported a moderately positive inclination to reach a solution, with speed being the most important reason to find a solution for both groups. Parties who expressed an unwillingness to reach a solution, indicated as their most important motivation that they did not know whether the other party would be willing to cooperate, and that they did not see any room for negotiation (often because they felt they were completely in the right).

Parties and lawyers were, erroneously, mildly negative about the other party’s willingness to reach a solution. Judges also underestimated the willingness to reach a solution of both parties and lawyers.

The judge/court gave little or no case-specific instructions before the hearing concerning documents that still needed to be submitted, or subjects that would be discussed during the hearing. At the start of the hearing, the judge often gave a short explanation about its purposes, and named the documents they had received from parties prior to the hearing, but apart from that, their talk was often standard and explained little. Parties sometimes asked the observers questions which showed that they did not have a full understanding of the hearing, for example questions such as: ‘Do you know who that was sitting next to the judge? Was that another judge, or the prosecutor?’

The judge did a comparatively large part of the talking during the informational phase: 22 minutes (including silences), against 7 to 8 minutes each for the other four people present. The judge rarely interrupted the participants in the hearing while they were talking.

When exploring the scope for settlement, the advantages of settling were not discussed in almost half of all comparities. In 35% of the hearings, the judge outlined the advantages of settling for both parties without asking them whether they agreed. Judges offered a prefiminary judgement in almost 70% of the hearings, which usually concerned the legal positions/defences or the burden of proof. In 56% of all comparities, the judge offered a preliminary judgement without first clarifying whether the parties required one. A majority of judges warned parties about the consequences of further litigation regarding time, effort, costs, and/or their future relationship. Judges themselves indicated that they took an active role in exploring the scope for settlement primarily when parties were cooperative during the hearing, when the discrepancy between positions was relatively small, when parties had a personal relationship or were emotionally involved, when the claim was smaller, and/or when the further procedure would probably last longer. 31% of parties and 35% of lawyers felt that the judge had a personal motive for facilitating a settlement. What stood out, was that 43% of those lawyers felt that the motive of the judge was to be rid of the case and eliminate the need to write a verdict. Almost 60% of cases that did not end in settlement, were referred to the docket for sentencing.

In 32% of investigated cases, parties reached a settlement during the hearing. Only the legal objective `exploring the scope for a settlement’ was measured for those hearings. The first thing that was investigated, was whether the judge `tried everything to get parties to settle’. Parties, lawyers, and judges generally answered that question positively. Furthermore, all respondents were asked whether they felt a settlement was coerced by the judge. Parties more often than judges felt a settlement was coerced. In 29% of settled cases in Utrecht, one party or one lawyer feit that a settlement was coerced by the judge. At the ‘s Hertogenbosch court, one or two of those present feit that a settlement was coerced by the judge in 48% of cases. It seems that parties and lawyers particularly feit a settlement was coerced when the judge was definite in stating the advantages and disadvantages of settling and/or in stating a preliminary verdict, or when the judge kept belabouring a settlement. Finally, lawyers and especially parties were generally not very satisfied with the final settlement.

No settlement was reached in 68% of all hearings. At those, all three legai objectives were assessed. Parties, lawyers, and judges were fairly positive on whether the judge `tried everything to get parties to settle’. There was less agreement concerning the other two legai objectives. For example, judges were significantly more positive than parties and lawyers on whether all required information regarding the case had been discussed. The most important reason why a number of parties and lawyers disagreed, was that the judge discussed certain subjects hardly or not at all, or that they did not get the chance to address them. Regarding discussion of the subsequent steps of the procedure, judges were also more positive than parties and lawyers on whether enough effort had been made during the hearing to plan the subsequent steps in the procedure, up to and including the final verdict. Lawyers were more positive than parties with respect to this issue.

A final salient point is that parties, lawyers, and judges who were present at the same hearing, left the courtroom with significantly different opinions on whether the legai objectives were achieved.

Judges prirnarily put forward personal objectives that they had a legai obligation to achieve, without much personal input or interpretation. Their average score regarding achievement of personal objectives was fairly positive. Lawyers mentioned more personal objectives that diverged from legai objectives, such as being found right, convincing the judge they were right, and a satisfied client. Lawyers were significantly less successful than judges in achieving their personal objectives. Parties mostly mentioned personal objectives that were different from legai objectives, such as being found right, a quick resolution of the dispute, justice, a just outcome, and convincing the other party they were wrong. Achievement of these objectives was fairly negative, and parties scored even lower than lawyers. This divergence in the achievement of objectives between parties, lawyers, and judges can probably be explained by the expectations each of these groups had concerning the hearing. Lawyers and (particularly) judges probably had a much more realistic image than parties of what they could expect of the hearing.

Another noteworthy aspect regarding parties, was that 42% mentioned `being found right’ as an objective, but that this was quite rarely achieved. This study did not reveal what parties meant exactly with `being found right’: did they expect that the judge would hand down a verbal sentence during the hearing? Or where they looking for verbal and non-verbal cues from the judge confirming their views?

Achieving personal objectives of parties, lawyers, and judges scored significantly higher in those hearings where a settlement was reached, apparently primarily because the achievement of objectives such as exploring the scope of/reaching a settlement, a quick resolution/ending of the procedure, a fair outcome, a solution to the problem, removing doubt, achieving peace, and a satisfied client scored higher in these hearings.

There was little correlation in the achievement of personal objectives between different attendees to the same hearing.

Parties and lawyers were quite positive regarding perceived justice. They were most positive on the treatment they received from the judge (interpersonal justice), and on aspects such as being able to relate their story, an impartial judge, an equal treatment, and a properly prepared judge (procedural justice). They were least positive regarding explanation and information from the judge about the hearing (informational justice). Lawyers perceived a higher level of procedural and informational justice than parties, which might cause lawyers to have a less clear image of the way their clients perceive the hearing.

Parties and lawyers attending the same hearing left courtrooms with quite different perceptions of justice. Judges underestimated the perceived interpersonal and informational justice of parties.

For parties and lawyers, this study measured both their perceived justice and their perceived acceptableness. Justice and acceptableness are different concepts. However, the items for acceptableness are formulated to closely match the three forms of justice. For example, questions were asked regarding the acceptableness of treatment by the judge (interpersonal justice), the information and explanation offered by the judge (informational justice), and the entire procedure during the hearing (procedural justice). Parties and lawyers were generally fairly positive on these points.

They were asked for comments during the interviews. Participants in the hearings noted, regarding their treatment by the judge, that they valued the following aspects: being treated with respect (no inappropriate remarks or irritation from the judge), the opportunity to relate their story, a judge who listens, empathises, and shows involvement (much more important to parties), and an impartial judge (somewhat more important to lawyers). A perceived lack of impartiality from the judge was often connected to facilitating a settlement: a judge placed too much emphasis on the settlement, or gave their own opinion from the start of the hearing and seemed to be unresponsive to arguments from parties.

Concerning the acceptableness of information and explanation offered by the judge, parties and lawyers valued an explanation of the purpose of the hearing, the objectives of the hearing, or mentioning who would get an opportunity to speak. Primarily lawyers mentioned that they would like to receive information prior to the hearing on what aspects of the case the judge would ask questions about. A small number of parties and lawyers was less satisfied with explanation and information, because the judge gave little, no, or incorrect information.

The comments from parties and lawyers regarding the acceptableness of the procedure as a whole during the hearing was very similar to what was mentioned regarding the acceptableness of the treatment by the judge. Furthermore, they mentioned good management by the judge during the hearing, a judge that was helpful in finding a solution, and a non-coercive judge. Negative and equivocal answers primarily concerned criticisms of the way a judge had explored the scope for settlement: sometimes the judge was not helpful enough, in other cases too helpful.

In present hearing practices, there is a positive correlation between perceived justice, the achievement of legal objectives, and the achievement of personal objectives by the participants (parties and lawyers). This means that judges have the opportunity to realize both the legal objectives and the personal objectives of parties and lawyers, and also satisfy the participants in a hearing regarding the perceived justice.

In this chapter, I will identify a number of opportunities to improve present hearing practices. These are based on the results of my empirical study and on ideas for improvement forwarded during an expert meeting in July 2008.

3. It would be advisable to placing more emphasis on best practices for judges to facilitate settlements during a hearing. At present, this process seems rather slapdash.

It also deserves mentioning that there is room for improvement for the judiciary for a more process-oriented approach, developing alternatives, and reviewing their choices, for example based on more general scholarly knowledge, practical insight, and literature on communication processes. This (and other) knowledge could be used as input when developing best practices for hearings. Such stock-taking would not necessarily result in a strict protocol for judges to follow, but could also provide insight for judges in the consequences of various ways to conduct their comparities, which would enable them to make a more informed choice. It would be advisable to involve not only the judiciary (and its close neighbour, the Bar), but a more extensive circle of people and institutes.

In this chapter, I describe the proposals for improvement that were made for the comparitie in the Netherlands, and for comparable hearings in Germany and the United States. I will only discuss proposals which would result in a (substantial) increase in effectiveness and justice.

A significant number of proposals forwarded in the Netherlands with regard to the comparitie concern the information/instructions provided to both parties by the judge, and the opportunities parties should receive during the hearing to tell their own stortes. Other areas of attention are the conversational skills of judges, such as summarising and asking open questions, and for the ways in which a judge can facilitate settlements.

These aspects (information, relating stortes, conversational skills, facilitating settlements) receive attention in Germany as well. A distinguishing characteristic of the German legal system is that judges have the option of issuing a written settlement proposal to parties, even before the hearing. This encourages settlements as early in the procedure as possible in Germany. Furthermore, a number of pilots were initiated in Germany in recent years, where judges have the option of referring a case to a separate settlement judge. This separate judge reviews the possibilities for settling the case with parties, in less formal rooms dedicated to that purpose.

In the United States, the proposals for improvement are aimed primarily at exploring the scope for settlement, especially avoiding coerced settlements. A significant amount of jurisprudence has been developed on when a settlement is or is not coerced, and the Code of Conduct of United States Judges explicitly prohibits coerced settlements. Many proposals have also been put forward in literature with regards to the prevention of coerced settlements. Finally, American legal literature devotes a lot of attention to providing good information to parties regarding the hearing, and communication during the hearing (such as a comfortable atmosphere, opportunity to relate the story, and skins).

In this chapter, I will outline best practices for judges presiding over comparities, using seven (complementary) proposals. Best practices means that they would probably lead to a higher level of experienced justice (be it procedural, inter-personal, and/or informational), to a higher level of achieved legal objectives and/or the formulating of objectives (expectations) by parties and lawyers that are in line with what can be expected from the hearing, probably resulting in more fulfilled personal objectives (expectations). My proposals will not be compared to other criteria that might be relevant for developing best practices for comparities, such as speed and costs.

I drew inspiration for the proposals in this chapter from the proposals for improvement in chapter 9, and I will mention on which of them my proposals in this chapter are based. For each proposal in this chapter, I will also explain how it could be implemented in practice.

I will offer a number of proposals (best practices) for each of the opportunities for improvement from chapter 8. The proposals will have bearing on, respectively: providing better information concerning the hearing (proposals 1 and 2), better communication and rapport during the hearing (proposals 3, 4, and 5), and improvements for exploring the scope for settlement (proposals 6 and 7). To be clear, the best practices are not all derived from the empirical study I conducted, because the data that were gathered there — coloured as it was by present hearing practices was not enough basis.

Of late, hearings have developed into a central part of civil and other procedures at courts in the Netherlands and abroad. Much research has been done regarding the question of what is important in a procedure to members of the public, and into their experienced justice (relating their story, respectful treatment, good information). My study shows that parties and lawyers are generally satisfied with the level of justice they experienced during the hearing, but there is still a lot of room for improvement (as there is regarding the achievement of objectives).

A number of elements that were not included in this book could provide a clearer image of the hearing. Examples include the level of satisfaction in parties regarding the outcome, and the investments in cost and time that would result from my proposals.

The final question that presents itself is what the results would look like if the participants not only evaluate the hearing itself, as they did in this study, but also the way they experienced the procedure as a whole (from summons to final sentence). Would that yield a more negative picture? After all, the hearing is the most interactive part of the procedure and, more often than not, the only occasion for both parties to interact directly with the judge.