Summary and conclusions

Do collegial courts perform better than single-judge courts? In general, it is assumed that collegial adjudication is beneficial to the quality of the judgment. After all, three or five people know more than one and their consultation can lead to a fruitful exchange of views. On the other hand, single-judge adjudication is said to save expenses and leads to faster decisions plus simplified organisation of sessions. These advantages have led to most court-cases being considered by a single-judge court in the last forty years.

This is not a surprising development, given the cutbacks that have been implemented since the 1980s. Yet, the trend to single-judge adjudication is remarkable. Not because of the choice itself to have cases heard by a single-judge court, but because of the lack of discussion by which collegial adjudication has given way to single-judge adjudication. Perhaps even more remarkable is the prevailing notion that collegial adjudication improves the quality of justice and that single-judge adjudication is more efficient, despite the lack of empirical support. The question of the added value of collegial and single-judge adjudication is particularly important in the light of the debate on quality and production that has taken place within the judiciary in recent years. After all, the impression is that the substantive quality has been under pressure due to the emphasis on production and the elimination of backlogs.

The central questions in this study were what differences and similarities there are between collegial and single-judge adjudication, in particular in civil cases, and by extension, which added value collegial adjudication has. To get the most accurate picture and understanding of these types of administration of law, several research methods have been applied. Literature, legislation, policy and parliamentary documents on collegial and single-judge adjudication have been examined. Theoretical insights about decision-making unfolded in the literature were studied and figures were analysed. Judges have been interviewed and surveyed; sessions and hearings in chambers have been observed. Judgments passed in the first instance and in appeal have also been studied. A direct answer to the central questions was found with the observations, survey, interviews and case law analysis. Still, a good understanding of the themes of collegial and single-judge adjudication also required research into their context, such as the development that they have undergone under the influence of legislation and policies, and into the allocation of cases that leads to either hearing in a multi-judge or single-judge court. Comparison and consideration of the findings from the investigations result in answers to the questions in this book. For this, it is constantly referred to the research questions formulated in Chapter 1.

This book starts with a retrospective, namely the development of collegial and single-judge adjudication in the Netherlands since the beginning of the nineteenth century. This development has been driven by legislation and policies, which have led to the vast majority of cases being heard by one judge in the first instance. The following can be concluded about the development, the policies, and the proportions of cases heard by a collegial or single-judge court (see research questions 1 and 8, section 1.4).

Historically, the administration of law in the Netherlands has primarily been a matter for collegial courts. Until far into the twentieth century, the vast majority of court cases were dealt with in collegial courts. Since 1835, cases in the first instance have been heard in panels of three. Until 1910, cases in appeal were brought before chambers of five or six and cases heard by the Supreme Court even in chambers of seven.

The cantonal judge is the main institute of single-judge adjudication, which has existed since the review of the judicial organization in 1811. The single-judge court steadily rose in the twentieth century only. Initially, this occurred under pressure from arrears in the courts and new insights into the approach of litigants. These ideas led to the introduction of new single-judge courts, such as the juvenile court and police (or magistrate’s) court in 1922. The legislator believed that hearing of a case by a single judge provided a more informal way so as to ease the communication between the judge and the person seeking justice. One also believed in the ‘educative power of a quick trial’ by the police court.

From the 1970s onwards, the slow growth of single-judge adjudication gained momentum. The judiciary thought it was an adequate way to cope with the rapidly growing number of cases. The discussion that this trend evoked was of a different nature than before. Meanwhile, in the nineteenth century, debate about collegial and single-judge adjudication focused mainly on the qualities that were attributed to collegial and single-judge courts; in the course of the twentieth century the discussion shifted to the efficiency of administration of justice.

Thus, since the late 1980s, most cases in the first instance have been referred to a single-judge court, although the percentages vary greatly per court and field of law. Nowadays, 8 percent of the trade cases are settled by a collegial court; 2 percent of the family cases; 15 percent of the criminal cases; 11 percent of the administrative cases; 3 percent of the migrant cases; and 28 percent of the tax cases. Long-term discussions about widening the powers of the police courts and cantonal courts have led to more cases falling within the scope of their competence in 2002 and 2011 respectively. Appeal courts hear 91 and 93 percent of the criminal and tax cases, respectively, in a collegial court. In the Supreme Court all cases are brought before a collegial court of three or five justices. The structure of the case handling system therefore takes the form of an inverted pyramid: the number of judges in a chamber usually increases as the case gets higher in the legal system.

At the start of the twenty-first century, judges increasingly expressed concerns about maintaining the quality of justice. The large influx of cases and the production-oriented financing model, which stimulates the allocation of cases to single-judge courts, gave cause for this. In response, measures have been taken to improve the quality of justice, including setting targets for the share of cases that should be heard by a panel of three.

The targets for collegial adjudication are currently achieved in most fields of law. For trade cases the target is set at 10 percent; for family cases at 3; for criminal cases at 15; and for administrative cases, migrant cases, and tax cases at 10, 5 and 25 percent respectively. According to the norm, only trade cases and migrant cases should be considered more often by a three-judge panel.

A question related to the court policies mentioned above is which legal rules there are on adjudication in a collegial or single-judge court. This includes which rules determine how cases are allocated to a panel or a single judge. (See research question 3, paragraph 1.4.)

The following rules apply: collegial and single-judge courts have the same legal powers with regard to the handling of cases. They are responsible for the court session, the assessment and the decision in the case assigned to them. The judge sitting in a single-judge court has the same powers and obligations as the chair of a collegial court: she leads the session and signs the judgment.1 Some single-judge courts merely conduct investigations, such as the so-called judges-commissioners, or perform only formal procedural acts, as cause-list judges do. Collegial courts always consider a case substantially.

As a rule, civil and administrative cases in the first instance are heard by a single-judge court. The vast majority of criminal cases are brought before a single-judge court, although the main rule requires that criminal cases in the first instance go to a collegial court. This rule is based on fundamental considerations, because prosecution and trial can have the most far-reaching consequences for a person seeking justice. Nevertheless, the law leaves much latitude for district courts to deviate from the main rules and thus to decide whether a case needs to be heard by one or three judges.

This is different in courts of justice and the Supreme Court, where civil and tax cases are subjected to the authority of a collegial court. Only criminal cases and family cases in appeal can be assigned, under strict conditions, to a single-headed court. Administrative courts of appeal decide whether cases brought before them are heard in a collegial or single-judge court.

How is a case assigned to a collegial or single-judge court? In addition, what criteria do courts use for its allocation? (See research question 4, paragraph 1.4.)

First, each court has established regulations on the allocation of cases to collegial and single-judge courts. Courts have ruled for themselves that cases of a certain kind will always be brought before a collegial court. Think about lawsuits on expropriation and decisions that declare aliens undesirable because of alleged human rights violations. The actual allocation of newly received cases varies, both per field of law and per court. Formally, court boards are responsible for assigning cases to a collegial or single-judge court. In practice, judges and staff members perform the allocation of cases on behalf of the board. Sometimes team leaders or cause-list judges assign the case to a collegial or single-judge court after a global inspection of the file. Sometimes staff members or administrative assistants are entrusted with this task.

The relatively wide autonomy of courts in the allocation of cases explains the considerable differences in the share of collegial and single-judge adjudication between the courts. Still, the survey and interviews show that the criteria for case allocation are broadly the same. This paradox could be explained by the fact that courts apply the criteria differently. They also have to deal with an unequal influx of cases that are ‘worth being considered in a collegial court’. Courts also mention limited financial space and staffing capacity as a reason to assign cases to single-judge courts.

The allocation to a collegial or single-judge court mainly depends on substantive and functional criteria that have developed in practice. They are often unwritten. Complicated cases or cases that seem to be in the public eye are usually considered in collegial courts. This also applies to cases relating to new legislation or with large material or financial impact. The training of less experienced judges also plays a part in assigning cases to a collegial court. In courts of appeal, the simplicity of the case is the main reason for bringing a case before a single-judge court. When assigning a case to a particular judge or a combination of particular judges, their general judicial experience and specific experience in a field are generally taken into account. Attention is also paid to individual circumstances influencing the employability of a judge. Forty percent of the judges surveyed say that in their department every judge can hear every case.

If the allocation to a collegial or single-judge court turns out unfavourably, the assignment can be reconsidered. A collegial or single-judge court can usually refer an assigned case to a chamber of one or three, if it deems this forum more suitable for consideration. Yet, judges do not use this power frequently. According to the majority of respondents in this study, the case allocation is adequate. Nevertheless, almost a third of the judges interviewed indicated that they would like to consider cases more often collegially. Their restraint to refer a case to a collegial court is explained by the hesitance to make their already severely strained colleagues responsible for another case. They also argue that the procedure will be delayed, if new judges are involved in a case. After all, they have to read up the case files. The case may also need a new oral session in court.

It has emerged from the foregoing that the legislator leaves courts ample room to decide whether a case should be dealt with in a collegial or single-judge court. However, the latitude to develop a method for allocating cases itself is not free of obligations. First and foremost, the decision to assign a case to a collegial or single-judge court, including its composition, must be taken independently by the judiciary. The law provides several guarantees to this end. The number of judges ruling on a case is only one safeguard for the independence of the case assignment. Adjudication by a number of judges that is not in line with (the few) strict regulations, leads to the judgment being null and void. This stringency of the law will prevent a government from extending a collegial court with judges who may be more favourable to governmental decisions. This said, the law generally offers judges a lot of latitude to refer a case to a collegial or single-judge court. From the foregoing can be concluded that the law does not aim to prevent an ‘incorrect’ number of judges from hearing a case, but rather that the number of judges handling a case is not determined by an authority that lacks the power to do so. Moreover, the Dutch government has acknowledged that the decision as to whether a case must be dealt with in a collegial or single-judge court is part of judicial policy. The government accepts that neither the government itself nor any minister is entitled to prescribe that a certain category of cases, for example for efficiency reasons, must be heard in a single-judge court.

In allocating cases, courts are not only confronted with legal, but also with financial and personnel limitations. The judiciary is fully funded on the basis of production, which means courts are paid per judgment issued or settlement achieved. Because cases differ in nature and complexity, they are distinguished according to various characteristics, including the manner in which they are heard: by a panel or a single judge. A relevant question for this study is therefore how collegial and single-judge cases are financed and what this entails for the allocation. (See research question 9, paragraph 1.4.)

The funding system is relevant, because financial incentives can affect the decision-making behaviour of judges and courts. Although their ethical standards and professionalism will prevent them from improper allocation in most cases, there are indications from this and other research that this is not always the case. The chance of improper allocation is increased, because courts have limited scope to generate more income. Collegial adjudication is one of the few tools for this.

The hearing of cases in a collegial court is relatively expensive, as a result of which such cases are generally allowed a higher compensation. The amount of compensation courts receive per case is based, among other things, on research on how much time the settlement of a certain type of case takes. According to critics, however, this does not lead to a fair reimbursement, because it merely measures how much time is actually spent on a case and not how much time is actually needed for careful consideration. It is not known whether the higher compensation fully compensates for the extra costs that a court must incur for collegial consideration. Remarkably, courts are equally compensated for the hearing of immigration cases in a collegial or single-judge court. This makes it financially unattractive for courts to bring these cases before a chamber of three judges. This fact helps to explain the low shares of hearing of immigration cases in a collegial court.

At first glance, it seems obvious what should be understood by collegial and single-judge adjudication, but practice shows that there are various variants behind these concepts. (See research question 4, paragraph 1.4.) These concern firstly the number of members of a collegial court, secondly the person of the members, and thirdly the distinction in participation in the most important stages of the procedure: the court session and the hearing in chambers, including the decision-making.

The law defines a collegial court as a chamber consisting of three judicial officials charged with administering justice, unless the law provides otherwise. This final phrase concerns both the possibility of declaring persons other than judges competent for the administration of justice as well as the possibility of ruling with a number other than three. Persons who are competent to administer justice, but who are not judges, can be found in the special appeal bodies in administrative cases and in certain collegial courts. If the law prescribes that a collegial court must consist of a membership other than three, then it will almost always be five members.

According to the judges questioned in the survey, collegial consideration means in all cases that the members of the panel actually deliberate and decide together. This does not apply to participation in the court session. In most trade cases and to a lesser extent family cases, only one member of the three-judge panel takes part in the session as a judge-commissioner. This gives her advantage over the other members, since she is better informed about the case. The other members may, rightly or wrongly, attach more value to the views of the judge-commissioner than to their own.

Although all members of the collegial court participate in the deliberations, this does not mean that their individual commitment or contribution is the same. This can vary widely, because the members prepare themselves to varying degrees and manifest themselves in different ways during the hearing in chambers. In addition, not only members of the collegial or single-judge court are involved in the formation of a judgment: especially in single-judge cases, the judge regularly receives assistance from a law clerk. The conception of a judgment is often left to him, although the judgment does not go out until the collegial or single-judge court has assessed it and finally approved it. The law clerk’s contribution to the hearing in chambers can be so extensive that actually four (in collegial courts) or two people (in single-judge courts) are involved in the hearing of a case, even though the decision is reserved for either the panel of three or one judge. According to other research, judges generally consider it as one of the duties of a clerk to bring forward substantive input, also in the hearing in chambers. The judges that were questioned and observed seemed to appreciate the fact that clerks make substantive contributions.

Also important for the decision-making process is the practice whereby draft judgments in single-judge cases are assessed by a colleague (either a judge or an senior law clerk) who have not been involved in the case in any way. This process is called marginal assessment. When this colleague has given feedback on the draft judgment, the judge can adjust the draft and subsequently pass the judgment. The idea of marginal assessment is that the quality of a judgment will be improved if it is commented on by an experienced jurist with a fresh look at the matter. Judges appear to consider marginal assessment as an undemanding and relatively efficient way to improve a judgment’s quality.

In view of the favourable appreciation of marginal assessment, it would be logical if all draft judgments in single-judge cases were commented by a jurist who is not involved in the case. The frequency of marginal assessment, however, depends on the court and field of law. Since 2012, the standard for the number of judgments that should be marginally assessed, has been part of a broader quality standard that relates to reflection. This means that every judge and law clerk should participate annually in a reflection process, whereby attention is given to providing and receiving feedback. The question, though, is whether marginal assessment can be replaced by such a trajectory. After all, it does not lead to a system in which the four-eyes principle of marginal assessment in draft judgments is structurally applied. This is regrettable in view of the positive effects attributed to marginal assessment and the limited investment that this process requires. Nonetheless, the judges who were interviewed indicated that the added value of marginal assessment is not such that it can replace collegial adjudication. Opinions voiced in the literature state that marginal assessment is aimed at reducing the vulnerability of single-judge decision-making. One could conclude from this statement that adjudication by a single-headed court, including marginal assessment, is not always sufficient. Collegial adjudication involves a completely unique way of forming a judgment for which there is no substitute, as will also become apparent in the next part of this chapter.

One of the methods to find out whether collegial and single-judge adjudication has added value is to ask judges how they feel about it. Therefore, they were presented with questions in a survey how they value both forms of adjudication. (See research question 10, section 1.4.)

According to a large majority, adjudication in a collegial court benefits the quality of administration of justice in general and the judgment in particular. Eighty and ninety percent of the judges, respectively, felt that way. They explained that collegial hearing leads to exchange of knowledge and insights, as well as to deepening of the discussion. These have a beneficial effect on the quality of the judgment. Almost all respondents felt that marginal assessment had a positive effect on the quality of the judgment too.

A significant advantage of the collegial court is that it enables younger judges to gain experience in collaboration with more experienced colleagues. Many respondents believed the acceptance and authority of judgments passed by a collegial court is greater than by a single-judge court. The following disadvantages of collegial adjudication were brought up: the longer reading time, the more complex planning of sessions, the higher costs and the often more formal treatment at the court session. Although almost thirty percent of the respondents like to see more cases are heard in a collegial court, a majority of respondents said they experience more pressure of work with this form of adjudication at the same time. This might have to do with the larger complexity of cases that a collegial court deals with.

Respondents saw the higher speed of settling cases, the greater dynamics and the more informal atmosphere in court sessions, as well as the feeling of being solely responsible, as positive aspects of single-judge adjudication. Collegial adjudication of average cases has little added value. In such cases, single-judge adjudication is opportune. However, at the same time, one must make sure that fairly complex cases are not gratuitously assigned to a single-judge court. Additionally, it is good to keep in mind that a judge with a great deal of experience in single-judge courts will unarguably have considerable expertise, but limited experience in collegial adjudication could also bring along rigid views or attitude. Moreover, with all too frequent settlement of cases in a single-judge court, the unity of law and legal certainty would be less guaranteed.

In another survey, dating from 1980, judges were also asked about their views on adjudication by one or more judges. These respondents were predominantly positive about the more frequent deployment of single-judge courts. On the one hand, they held that these hearings were beneficial to productivity, reduced waiting time for a judgment and enhanced communication between the judge and the persons seeking justice. Such hearings would also strengthen the sense of responsibility of the judge. On the other hand, the respondents argued that single-judge adjudication led to fewer opportunities for good contact with colleagues. There was disagreement about the consequences for the quality of justice.

With the exception of this last argument, the opinions voiced by the judges in the 1980 survey correspond to those in the survey in this research. The comparatively more positive views on the quality of single-judge adjudication in the 1980 survey can partly be explained by the fact that, at the time, cases were usually dealt with in three-judge panels. In those days, the financing system and operational management were also less focussed on productivity. As a result, there were probably fewer concerns about loss of quality, although there were.

Behavioural science research provides insight into the functioning of decision-making by groups and individuals. It shows that decision-making is not merely a matter of logical-rational analysis of collected facts, but that psychosocial mechanisms also have a large influence on this, which also applies to judicial decision-making. The question is which, in particular psychological, theories provide insight into decision-making by collegial and single-judge courts. (See research question 2, paragraph 1.4.)

In a decision-making process, an individual collects information that she deems important for the decision. She then processes this information, together with knowledge she already has. Finally, she makes a decision. A group decision-making process, such as in a collegial court, distinguishes itself from this in two ways: because more information and insights are available and because the exchange and processing thereof are subject to group dynamic factors.

The wider presence of information in collegial courts is in principle beneficial to the quality of decision-making; the group dynamics can both promote and inhibit this. In situations where a joint decision must be made, people do not always strive for optimal decisions. Social psychology teaches that the quality of a group decision is largely determined by a combination of social and epistemic motivation of the group members. The first concerns the personal (cooperative or individualistic) motives of a group member. For people with a cooperative motivation, decision-making is a common task that can best be accomplished in harmony. Personal success is the guiding principle for individuals with individualistic motivation. Contrary to what could be assumed, a cooperative institution is not necessarily favourable and an individualistic institution is not always bad for the quality of a group decision. After all, attaching too much value to the atmosphere and unity of a group can undermine the sharing and processing of information, while group members will exchange more unique information in the event of disagreement. This benefits the quality of the decision-making process. In addition, epistemic motivation refers to the willingness to make an effort for a thorough and truthful understanding of the world. Just like social motivation, it depends on the person and the situation.

Other research into group decision-making shows that groups are, on average, better able to collect and process information than individuals, so that their decisions generally contain fewer errors. Still, this does not necessarily apply to so-called assessment tasks, in which the best outcome – which is fair and right – cannot be determined precisely. Other (experimental) research showed that groups of three make significantly fewer errors in their decision-making than individuals, at least in the handling of complex cases. These errors were objectively incorrect. Strikingly enough, groups did not score better and sometimes even worse in simple cases. This was due probably to the fact that in such cases participants worked with less concentration and could put each other on the wrong track more easily.

Psychological research has made it clear that people, in their search for the right decisions, are often unknowingly hindered by all kinds of pitfalls. Some of them only occur with groups, others with groups and individuals. These pitfalls are persistent, but not inevitable. Ways to improve decision-making in collegial and single-judge courts are discussed at the end of this chapter.

Parties should have the opportunity to present their story at the court session and to respond to what the other party is submitting. Hearing, being heard and feeling heard, so the motto goes. The tasks judges face during a session – getting a good picture of what divides the parties, gathering all relevant information for a possible judgment, testing a settlement, taking into account the needs of the parties, monitoring progress – require quite some capacities. Given this multitude of tasks, a collegial court may succeed better in fulfilling them properly than a single-judge court. Does that also appear from the observed sessions? In this paragraph, the questions are answered how collegial court sessions in civil cases proceed, that were dealt with in the Gelderland District Court and the East Brabant District Court, as well as what differences and similarities have been observed between collegial and single-judge court sessions in civil cases. (See research question 6, paragraph 1.4.)

The judges, the chair first, gave parties the opportunity to expose their views on the case. They gathered information by asking questions, verified and summarized, inquired about the experience and wishes of the parties, tested the possibility of a settlement, reminded and advised, made a provisional judgment, and watched over the progress of the procedure. What is striking about the course of the session is that the phases of negotiations, inquiring and process planning were often not clearly defined. The end of the negotiation phase and the inquiring and process planning phases sometimes intertwined or merged. At this stage of the oral hearing, apparent willingness to settle and irreconcilability between the parties could alternate. The parties doubted whether they would continue to negotiate, asked for a date for a judgment or were persuaded to talk. This attitude could indicate uncertainty about what the highest attainable result was, but could also be part of the process strategy. In the meantime, the judges had to assess what was desirable: attempting to persuade the parties to talk to each other, proposing to end the case by setting a date for judgment or simply deciding that a judgment date would be set. The position of the judges in a collegial court showed that they did not always make the same assessment. In one session, for example, the chair clearly saw no reason to let the parties continue to talk, while the younger judge wanted to make one final attempt.

The role of the chair of a collegial court in oral hearings is to some extent comparable to that of the judge in the single-judge court. She carries out the formal procedural acts and, in that sense, she is the technical chair: she opens and closes, gives the floor to the parties, summarizes, monitors the progress of the procedure, and so on. But whereas in a single-judge court session the judge is also concerned with a substantive duty – think of assessing whether the information provided gives an adequate picture of the dispute or estimating the willingness of parties to settle –, she receives support for this from her fellow judges in sessions in collegial court. In the observed sessions, the assessors regularly intervened, although the extent to which that happened clearly differed per session and per judge. The assessors rarely waited for the chair to speak, but intervened if they considered it necessary. If an assessor took the floor, this was done to collect information, to remove ambiguities, to support or assist a fellow judge in her intention, to protect the chair from an omission, to get the parties to talk to each other or to monitor progress. This set of goals shows that the interventions of the assessors were not only focused on the content of the case, but they also intervened in order to ensure the orderly course of the procedure, although the latter did not happen often. The assessors usually acted on the basis of their own insight into what the situation offered. Occasionally their actions were the result of what the judges in the hearing in chambers had agreed before and during the session.

The oral hearings of the collegial courts observed in this study proceeded in more or less the same way. Most judges participated actively. Differences in their participation mainly became apparent in the stages of collecting information and encouraging parties to negotiate. The chance of success of an amicable settlement is a matter of estimation. As said, some judges made an extra effort to bring parties together, others did not. Anyhow, the interventions of the assessors were useful and demonstrated the added value of collegial adjudication. The assessors made sure that sufficient attention was paid to relevant aspects of the case, which the chair, with her multitude of duties, could leave underexposed. The improved information collection could result in judgments of better quality, in which judges are less likely to lean on phrases such as ‘it was insufficiently stated or proven that’. In addition, the assessors were able to sense what was needed to maintain a fertile atmosphere, which increased the chance of an amicable settlement.

The difference in procedural justice between collegial and single-judge court sessions has not been investigated in this study, though an estimate can be made. On the one hand, according to the judges questioned, a single-judge court session can be perceived more favourably by the parties than sessions with three judges, because the first looks somewhat less official and a conversation could be more easily realized in a less formal atmosphere with only one judge. This probably makes a difference especially for one-shotters and less for repeat players and professional legal aid providers. On the other hand, assessors in a collegial court can prove their added value by keeping a close eye on whether parties are properly heard and informed. In almost all the observed sessions, the assessors played a useful part in this regard. Because of their actions, in several sessions the parties have had more opportunity to present their vision. This means that the principles of a fair trial, including the principle of hearing both sides and the equality of arms, have been better respected than would have happened in a single-judge session. Interventions of the assessors made it easier to meet the needs of the parties, especially when it came to hearing and being informed. In addition, for litigants in general but for crime victims in particular, adjudication in a collegial court could be an indication that their case is taken very seriously.

This research showed that there are also practical benefits of hearing in a collegial court. When one of the sessions lasted longer than planned and two judges had to leave because they were expected to attend another session, it was proposed to continue the oral hearing in single-judge court, led by the member of the collegial court without obligations elsewhere. Furthermore, a potential advantage of adjudication in a multi-judge panel is that a judge can take over the questioning of a party from a colleague, if there is noticeable tension between the two. Yet, this has not occurred in the observed sessions.

In this observation study, there were no apparent drawbacks of sitting in a collegial court. So, the behaviour of judges did not lead to delay, obstruction or visible annoyance. The possible disadvantages that may be mentioned relate to the organization of the sessions and not to the substantive hearing of the case. In interviews, surveys and literature, judges have pointed out that simpler cases can be heard by a single-judge court without compromising the quality of the adjudication. Single-judge adjudication would then be preferable to save costs and court capacity and because it may be pleasant for parties to deal with only one judge. It could also be pleasant for judges to have overall control and responsibility for the hearing of a case. Other disadvantages of collegial sitting have not been established. It is true that the larger time consumption of collegial consideration is often mentioned as a downside, but this drawback is not so much related to the session itself as to the planning and decision-making after it has ended.

The answer to the question whether the attended sessions could just as well have been led by one judge is nuanced. Due to the complexity of the case and the size of the claim, being the most frequently cited criteria for assigning a case to a collegial or single-judge court, four out of ten hearings could have been conducted by an experienced judge single-handedly.

Adjudication in collegial courts enables to observe how judges come to decisions. As a result, it can be explained how the decision-making process in civil cases proceeded (as observed in hearings in chambers of the Gelderland District Court and the East Brabant District Court) and what differences and similarities were identified between the collegial and single-judge decision-making process. (See research question 7, paragraph 1.4.)

What stood out? Firstly, the informal character and the usually relaxed atmosphere of the hearings in chambers. The opening of the hearing in chambers in particular was used as an outlet for thoughts and feelings about the session. The judges openly expressed how they experienced the case, so whether it was felt interesting, awkward, dragging or complex. They also alternated comments on the case with comments that were indirectly related to it, for example about previous experiences with a lawyer. Judges showed that they enjoyed the hearing in chambers. This finding is in line with the opinion of the judges interviewed: consultation and cooperation are pleasant aspects of collegial hearing in an office that requires a lot of solo work. Moreover, hearings in chambers are instructive, as was also told in the interviews and survey. Judges observed each other’s approach in session and in chambers, evaluated each other’s performance and pointed each other to regulations, case law and a striking strategy of the parties.

The latitude that judges have in their interpretation of the decision-making process may have contributed to the lack of structure and formalities in the hearing in chambers. There was no official opening and an agenda was missing. Most of the time, the judge with the role of chair was not recognizable as such. Topics were usually not introduced and only little was summarized. Most judges clearly demonstrated that they were familiar with the culture of free thought and brainstorming that was prevalent in the hearings in chamber. All sorts of thoughts about the case and oral hearing were freely expressed. The judges constantly exchanged knowledge of various propositions and facts from the file and the session, interpretations of behaviour, views on party intentions and relevant case law plus they submitted arguments that were subsequently assessed. They listened to each other’s input and were not afraid to reconsider an earlier position, although discussions were sometimes fierce. The judges were sparring partners.

This culture is enabled by the privacy of the hearing in chambers. As a result, judges could freely share their doubts, insights, and feelings about a case without being prevented from expressing these due to the presence of public or cameras. Under these circumstances, judges are more likely to consider administration of justice as a common task and they are more open to being convinced. It is then easier to reconsider earlier views and to focus on the content of the arguments instead of hammering away at one’s own right. The freedom to change ground must be cherished and that is best achieved in a private meeting. This finding is remarkable, because it is stated in psychological literature that discussants make better decisions when they are observed. The idea is that the awareness of being observed is a stimulus for group decision-makers to make an effort for a proper exchange of views. It is not confirmed in this study, though.

The hearing in chambers can therefore be characterized as free and open, but at the same time, the judges were constantly focused on what the discussion should lead to: the decision. To that end, the judges quickly set out the actual or legal key points of the case. Their focus on the judgment did not mean that the content of the decision was secondary to taking the decision itself. The hearing in chambers revealed that decision-making is a process of reasoning and provisional decision-making, between which there is a constant interaction. While reading, thinking, listening and talking, judges shared knowledge and developed ideas about the direction in which the decision had to be sought. In addition, facts and rules of law were inventoried and selected, arguments were put forward, considerations were made and provisional conclusions were drawn, that could also be taken back. The judges built on each other’s insights in order to find a conclusive and correct reasoning. With this, hearings in a collegial court clearly demonstrate their added value.

The judges, however, did not always take full advantage of the consideration in a collegial court. Although the social motivation of the judges was mainly cooperative and not so much individualistic, in half of the observed hearings, the input of a member of the collegial court was only low or nil. The other members of the chamber tacitly assumed that she would agree with their opinion. This weakens the added value of collegial decision-making (see also the end of this chapter). In all hearings in chambers, the judges reached a judgment that was supported by all members, at least by those who clearly expressed their thoughts. There was never a vote and consensus did not have to be sought, since the judges agreed on the decision. Still, there are no indications that the social motivation in the hearing in chambers was so strong that the decision-making process was driven by group think. Their well-founded dissents as well as their open attitude towards other insights stood in the way of group think.

The epistemic motivation of the collegial court was also quite high, both due to the personal attitude of the members and the circumstances that contributed to it. The judges, for example, clearly showed their need to understand what a case was about. Only once this was clearly different, when at the end of the hearing in chambers the three-judge panel accepted that it was not certain about the decision it had just taken. Further investigation could have removed the judges’ doubts. It is interesting but difficult to ascertain whether the members of this panel had opted for further investigation, if they had been responsible for the case as a single judge. Possibly the consensus-implies-correctness effect occurred here, since none of the judges opposed the proposed decision, despite their uncertainty. In another hearing in chambers, at the suggestion of a judge, the anchor heuristics were applied to determine the extent of the damage to be compensated, although it was hardly substantiated why the heuristics would be helpful. The other members went along with this. Critical questioning from a panel member could have broken through the suboptimal method of decision-making in the aforementioned cases. Anyhow, these cases were an exception: in general, the members of the collegial court did not quickly assume that a statement was correct. Thinking errors, such as confirmation bias, belief perseverance, and tunnel vision, have not been discovered, and the application of the so-called availability and representativeness heuristics, being methods of compressing information, have not been found either.

Diverging preferences (views and insights) of group members may result in higher epistemic motivation, as these circumstances invite to discussion.2 A proper discussion leads to inquiry and ultimately in a better decision. The chance of divergent preferences increases if groups are diverse. The observed hearings in chambers were diverse in terms of gender and age, but less in terms of diverging judicial experience and hardly in ethnic background. There was no autocratic leadership, which reduces epistemic motivation, and there was no noticeable dominance of power and status. This is possibly due to the fact that most members in the observed hearings have ample experience in the judiciary.

Sometimes pressure of time was felt in the decision-making process, which in principle does not benefit the epistemic motivation. Yet, it was not such that discussions were ended prematurely or a decision was forced. Important decisions in a case, such as the awarding of the claim, were never postponed. Still, meetings were frequently closed without all the points at issue being fully crystallized. Then a decision was taken that still needed to be substantiated, whereby the details were entrusted to the judge or law clerk that was designated to write the draft judgment. Often there was not much more than a ‘solution direction’, or in the words of a law clerk: ‘I will write it down and then you can shoot at it.’ At this stage, quite some work was to be done. Smaller issues that required substantiation as well as the filling of the gaps between the various considerations were thus left to the judge or clerk who drafted the judgment. This work is of considerable significance for the judgment. Without a sufficient answer to these questions, a judgment is insufficiently substantiated and therefore incomplete.3 The determinant role of the judge or clerk responsible for drafting the judgment cannot be underestimated, even though the draft is assessed by all judges and the clerk. This does not devaluate collegial decision-making, but it does show that one of the participants of the hearing in chambers has an important responsibility in transforming the answers to the main questions of the case, or even no more than the ‘solution direction’, into a full-fledged (draft) judgment.

Finally, an important finding is that the judges not only considered the correctness of an argument, but also whether they thought the result was acceptable. At the end of some discussions in the hearing in chambers, the most significant arguments were listed. Then it was determined how much weight was assigned to them. Subsequently, the balance of considerations fell to one side and that is where the decision was found. Yet, this does not mean that the decision has always been the final piece of long-term consideration of arguments. Sometimes a judge suggested a decision, for example based on a sense of justice, and put forward arguments as a foundation for this. If these arguments appeared to be insufficient in the discussion that followed, then the decision did not, or only partially, stand.

Differences and similarities between collegial and single-judge case law can be identified by comparing judgments in cases with a highly comparable content. In this research, this was done by comparing judgments both horizontally (judgments by district courts in different cases) and vertically (judgments in the same case; one passed by the district court, one by the court of appeal). Fifteen cases concerned liability for asbestos diseases and fifteen directors’ liability. (See research question 11, section 1.4.)

The comparison showed that larger differences were observed between the judgments of the district courts and courts of appeal than among the judgments of district courts. Further, larger differences were established among the judgments of district courts than among judgments of the courts of appeal.

For example, in their judgments, the courts of appeal mentioned criteria for the assessment more often than the district courts did.

The judgments of the courts of appeal were, in general, more thoroughly substantiated. Decisions in asbestos cases, for example, were explained with numerous references to scientific literature and government publications. It is also striking, in asbestos cases in particular, that if a judgment contains a system of criteria, it is regularly accompanied by an explanation of the facts. The judicial decisions can therefore immediately be derived from the combination of finding of law and facts. Facts, judicial interpretation of rules, and judgments are, as it were, intertwined. This may indicate that the conclusion of the judgment has been an interaction of facts and judicial interpretation of rules, as was observed in the hearing in chambers. Collegial and single-judge judgments do not differ in this respect.

Three of the five collegial judgments in asbestos cases, all of which are very complex, do not provide sufficient insight into the line of reasoning to make the decision verifiable and acceptable. Eight single judgments are acceptable, in the sense that they provide at least sufficient insight into the mindset of the court. These are not always simple cases: single-judge courts also handle complex to very complex asbestos cases. In most cases, it concerns cantonal cases or summary proceedings, which are always assigned to single-judge courts. Apparently, the judges did not refer these to a collegial court.

The picture is slightly different in directors’ liability cases: four of the five collegial judgments offer insight into the rationale underlying the reasoning. The same applies to relatively just as many single-judge rulings. It should be noted that in three cases the single-judge court did make a manifest error of assessment, for example by assuming an incorrect standard for the assessment. The errors were corrected on appeal. Whether the errors were prevented if they were considered in a collegial court is, obviously, uncertain. But the chance that the error had been noticed by a member of the collegial court is real. The chance that the assessment would subsequently have been different and would have had a different outcome is therefore not imaginary. Incidentally, with regard to directors’ liability, it is equally striking that complexity is not an obstacle to assigning a case to a single judge: six out of ten judgments passed by a single-judge court concerned a complex or very complex case.

The courts of appeal have provided sufficient insight into the rationale underlying the reasoning in almost all judgments. Several of them even offer more than sufficient insight; therein, step-by-step, clear and convincing reasons are given as to how the court has come to decision. The conclusion is therefore that, on average, in asbestos cases the single-judge rulings are generally better substantiated than the collegial ones passed by the district courts, and that in directors’ liability cases the collegial judgments are on average just as often acceptable as the single-judge rulings. The judgments of the courts of appeal are generally more carefully and convincingly motivated than the judgments passed by the district courts.

These findings about the differences between the judgments of district courts and judgments of courts of appeal seem to indicate that the higher degree of acceptability of the judgments of courts of appeal is not only caused by collegial hearing, but also by other factors. These are not investigated. Perhaps justices in appeal courts, on average, have more legal and judicial experience than judges in the first instance. Perhaps justices of the courts of appeal are more often assigned cases in which they specialize, as opposed to district court judges, who are supposed to be generalists in their sector. Also, courts of appeal benefit from the fact that their cases have already been crystallized, due to the hearing in first instance. In this study, the courts also appear to have taken (and were able to take) more time before passing judgment.

The language used in the judgments is business-like, fairly formal, and usually clear. Still, there are variations, in particular among judgments of district courts. The courts of appeal and the Supreme Court use a formal writing style. Both the collegial and single-judge courts of the district courts write in a more accessible style. The most accessible judgments are passed by typical single-judge courts: the cantonal judges and summary proceedings judges.

No notable differences between collegial and single-judge court judgments have been found with regard to the establishment of the facts, the legal rules on the basis of which the legal dispute was conducted and compliance with case law. In their search for justice, the courts faithfully follow the paths that the Supreme Court, and sometimes a court of appeal, has plotted. The premise that judgments passed by a collegial court contain more compromises and that single-judge rulings are more logical and systematic because there is no need to compromise, is not supported. It did turn out, however, that single-judge courts showed more often compassion for the suffering of an injured party in their judgments.

What is the added value of collegial adjudication? The answer is plural. First of all, it lies in bringing together knowledge and insights. These consist of knowledge of law and society, but also of knowledge and insights gained by reading the file and attending the session. Even more important is that the quality of a decision benefits from discussion. The idea of collegial consideration is not only that dialogue in the hearing in chambers leads to a better understanding of the case, but that it is sharpens even further when the deliberations take the form of a dialectical process. This concept means that panel members take positions that cannot be reconciled with each other. This divergency invites to inquiry, which in turn leads to a better understanding of the case, and ultimately to a better decision. After all, errors are filtered out and considerations are better substantiated. In this way, judges not only provide better substantiation, but they also make clear why other views are not accepted. Note that consultation is not sufficient for sound group decision-making. Discussion is required and this thrives best in a free and open atmosphere, where arguments are discussed based on their strength. Consequently, the judge is slowly becoming convinced of the decision she must take with her colleagues as well as of its foundations. The sharing of knowledge, the organizational dissent and the attitude of the judges observed in the hearing in chambers are essential to reap the benefits of collegial hearing.

Moreover, a favourable aspect of collegial adjudication is that, if all panel members attend the session, important elements of a case are more likely to be actually noticed and considered. In view of the many tasks that a chair has to perform, assessors can see to this. The observed sessions clearly demonstrated the assessors’ contribution to be beneficial, especially in complex cases. Further, in the case of disagreeable communication between a member of the panel and a litigant, it will be helpful if another member of the panel takes over the questioning. When it comes to good communication during the session, the person of the judge is much more decisive than the hearing by one or more judges. A communicative judge knows how to initiate a conversation with persons seeking justice. In doing so, attention is fully focused on the content of the case and the parties involved and it is not distracted by the solemn and formal nature of a court building and a session. Collegial hearing could reinforce the latter, as the legislator realized with the introduction of the police and juvenile courts.

The person of the judge not only has a major influence on the course of the session, but also on the quality of the judgment. Experienced and communicative judges can easily deal with common cases without assistance from colleagues in a three-judge panel. Adjudication in a collegial court then offers little added value to the quality of the hearing. Other experimental research also shows that collegial hearing in simple cases has no special effect on quality. The current standards for the allocation of cases, which stipulate that complex cases are assigned to a collegial court and simple ones to a single-judge court, are understandable and justified. Then it comes down to actually applying the standards, which does not always happen.

Furthermore, it is good to keep in mind that the choice for either collegial or single-judge adjudication serves more purposes than the case alone. Sitting together, deliberating and deciding also offers judges the opportunity to learn from each other, to share feedback and to maintain contact with each other. Judges who have been in the profession for a long time could benefit from it too. Adjudication in a collegial court therefore involves a trickle-down effect, as a result of which the knowledge and insights gained in a collegial court – new views, different approach – also have an effect on the approach to and decision-making in other cases that the judge deals with, both when sitting alone or as a member of a panel. But one must realize that single-judge adjudication has a learning effect too: the personal development of a judge, and therefore of the administration of law, will benefit if a judge regularly feels the responsibility to handle and decide on a case alone.

In favour of collegial adjudication, it can be noticed that multi-judge panels are likely to have more authority than a single-judge court, both with litigants and society and possibly also with judges. Therefore, cases that are exposed to much publicity are often assigned to collegial courts.

Collegial adjudication therefore has added value. The next question is whether its benefits can be utilized even better than is currently the case. The answer to that is in the affirmative. Collegial hearing mainly proves its added value with organizational dissent. Whether there was dissent in the hearing in chambers, turned out to depend primarily on the choice of judges to take positions and to question each other’s input. This should not only happen on their own discretion. Dissent should not be a choice of the judges involved, but must be deliberately organized.

First, this can be done by expressly inquiring the views of all the collegial court members by call (in Dutch: hoofdelijk omvraag). This inquiry, which is required by law, is a suitable way to hear the view of all members, especially of those who stand out less emphatically or who easily tend to support the judgment of others. This questioning can force everybody to think independently about the case and not to agree too easily with the view of a previous speaker. This does not mean that everyone must have a judgment right from the start, but that it is imperative for all members to share their views, even if they involve doubt or uncertainty. All members of the collegial court must both share their insights and opinions and ensure that all members are heard. This should not only lead to everyone speaking, but also to the participants’ input actually being listened to. In particular, the chair must ensure that all are heard. It is advisable to start the question with the younger judge, as the law once prescribed, and to end with the chair. It may also be advisable to ask the law clerk for her insights. In short: the few procedural rules about the hearing in chambers stimulate the debate. They are meaningful and must therefore be observed.

Further, it is recommended not to respond immediately to what a participant is submitting at the start of the hearing in chambers, but to wait until everyone has given her first view. A reaction leads to discussion, so that participants who have not spoken yet can be influenced. Sometimes, especially in criminal cases, the inquiry by call is used as a ‘gut-feeling round’ when the hearing in chambers is opened. This allows the participants to ventilate what they feel about the case. They can also point out to their colleagues if the case evokes personal emotions in them. By giving the opportunity to express those feelings, at least two goals are served. Firstly, an expressed emotion is a mitigated emotion, as a result of which it possibly does not weigh too heavily in the substantive consideration. Secondly, the participants of the hearing in chambers can take into account that a colleague is emotionally involved in the case.

Additionally, the chair can do more process counselling to improve the quality of collegial decision-making. So, the chair would do well to introduce some structure to the discussion, which would prevent certain questions from being overlooked. Structuring is also a suitable way to keep track of the time available for a hearing in chambers. Further, it is desirable for the chair to summarize the discussion every now and then, at least at the end of the hearing in chambers, so that it is clear to everyone what the decision of the collegial court is, including its underlying considerations. A good summary ensures that the judge or clerk who is responsible for writing the draft has solid tools for her work and that the members of the collegial court can still intervene during the meeting, if the summary, in their perception, does not match what was decided. As a result, there will be no need for thorough discussion when circulating the draft.

Dissent in collegial courts can also be organized in other ways than with inquiry by call. Research into alternative scenarios and decisions is a suitable means of dissent and truth-finding. One of the panel members may take up a role as a devil’s advocate and attack the dominant vision in the hearing in chambers. Including experts from the outside, as is the case with deputy judges, is also an effective means of stimulating critical reflection.

It has been explained earlier that the success of the hearing process and ultimately the quality of decision-making depends largely on the attitude of the members of the collegial court. Quality will improve if they open their minds to other views, think critically about the arguments and views that are given, and feel free to take a position. Ideally, judges already have such an attitude, but it can also be strengthened by training and by frequently sitting in a collegial court. It is therefore particularly useful for judges and law clerks not only to work in single-judge courts, but also to regularly form part of a collegial court of varying composition. The diverse composition of the collegial court increases the chance of dissent. Group members with different backgrounds bring different knowledge, insights and approaches with them, as a result of which a case is looked at from different angles. This can lead to better decision-making and a more balanced decision. The insights and approaches of people who been working together for a long time become more and more alike, even if they are from various backgrounds. This reduces the chance of dissent. So it is advisable to work with non-fixed collegial courts of varying composition.

Finally, the judicial decision-making process benefits from continuing attention to training and courses on psychological mechanisms in collective and individual decision-making. Consequently, judges become more aware of pitfalls in decision-making. Not falling into them sounds easier than it is, even for judges who are accustomed by nature or through their years in the judiciary to adopt a critical attitude. It is even more difficult when time pressure or pressure from colleagues is experienced. Psychological research, for example, repeatedly teaches that man’s tendency to go along with the group is hard to resist. Ultimately, sound decision-making is only guaranteed with decision-makers who take space for independent and critical reflection and dare to go against the flow, certainly in hearings in chambers.