Strasbourg, 23 March 2004

CCJE (2004) 9
English only

Consultative Council of European Judges (CCJE)

Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Norway

A. Access to justice

1. The National Courts Administration, which formally started its work in November 2002, has developed a strategy for information and communication that is now being realised. The aim of the strategy is ”confidence in the courts”. Through various projects on information and communication aimed at the court users, customers as well as pupils and students, the National Courts Administration will work to maintain and increase the public’s confidence in the courts as society’s main conflict solver.

A specific example of information and communication is the ”court web site” www.domstol.no that the National Courts Administration administers. Information about the Norwegian court system, the functions and procedures of the courts, useful information for the courts’ users and customers, news, glossaries of legal terms etc. are found on this site.

2. Under Norwegian law it is not necessary to be represented by a lawyer. There has not been taken special measures to reduce the costs of bringing actions before the courts, but there is an ongoing debate about legal costs, and there may be a tendency that the courts are reducing the lawyers’ fees more often than what was the case a few years ago. The legal basis for such reduction is that only necessary legal costs are compensated, if one of the parties is ordered to pay the costs of the case. Se also answer 4 c) below.

3. The Legal Aid Act of 13 December 1980 No 35 with later amendments, latest amendment 6 June 2003, states that free legal aid may be given in the form of either as a free counsel or as a “free trial”. In criminal trials the Criminal Procedure Act of 22 May 1981 No 25 stipulates a free attorney for defendants in criminal cases regardless of their income.

Free counsel is advice by an attorney in matters outside court such as assistance in drawing up various documents, i.e. applications, appeals, premarital agreements and so on. A free trial may cover court fees, attorney’s fees or both.

Under the Legal Aid Act people with a gross income below approximately € 30,000 and property with a net value of less than approximately € 12,500 are eligible for legal aid. The County Governor grants legal aid in form of free advice by an attorney. The County Governor also grants legal aid in the form of free trial. However, in certain cases free trial is granted directly by the court. This covers family cases, cases regarding tort, eviction from homes and cases where an employee contests a termination of employment. Furthermore, the court shall in all circumstances and without regard to eligible requirements grant free trial in cases regarding conscientious objectors to military service, where The Parliamentary Ombudsman for Public Administration recommends a trial, or where there is a legal contestaion of an administrative order relating to personal freedom or - in the case of aliens - a deportation order.

Funds used for legal aid is allocated in the budget for the Ministry of Justice. For the fiscal year 2004, the allocation is approximately EUR 45 million for free trial, approximately EUR 32 million for free counsel and approximately EUR 3 million for various expenditures related to the administration of the free legal aid system.

4.
a) Conditional fee agreements are not a part of the Norwegian legal tradition.

b) Most Norwegians have a legal cost insurance, because ordinary home insurances also cover legal costs up to €12 500. The party must cover 20 % of the legal costs. The insurance only covers the party’s own legal costs.

c) Under Norwegian law, the winning party can only recover “necessary costs” from the loosing party. The sum will be decided by the court and may be reduced in comparison to what the lawyer is claiming from the winning client.

B. Reduction of excessive workloads in the courts

1. The task of keeping the land registry, including the registration of rights relating to real estate, is in the process of being transferred from the district courts to the National Mapping Authority. This transfer will take place in stages beginning March 2004 to be completed by the end of 2006.

The administrative court staff deals with all tasks that is not required by law to be dealt with by a judge. A new electronic case management system named LOVISA is now being implemented in the courts. It will be a useful instrument inter alia in deciding in more detail what matters that should be dealt with by administrative staff and what matters which must be decided by a judge during the preparation of a trial.

2. Some of the ADR schemes in operation as described in question D1 below may also be used for settling small claims. In addition the Law Reform Committee on Dispute Resolution appointed in 1999 has proposed special procedures for dealing with small claims. The proposal is excepted to be presented before Parliament by the end of 2004.

3. The National Courts Administration reviews biannually the courts’ workload. For the district courts there is also a workload model that balances each type of case according to time estimates, i.e. how much time the court is expected to spend on a given type of case. A similar system will be in place for the appeal courts by the end of 2004.

Based on the workload model the National Courts Administration allocates the budget to the district courts and appellate courts. As part of this process the chief judge of each court presents a proposal for budget for his or her court to the National Courts Administration for the coming year. The Supreme Court receives its budget directly from Parliament.

The workload model is also used for allocating new posts both to the judiciary and the administrative staff.

4. The chief judge is responsible for the management of all resources for his or her court. The National Courts Administration offers education in management duties to chief judges. Some larger courts have posts as top administrative chiefs to assist the chief judges with the administrative duties. Where such an administrative official has been appointed, he or she typically deals with personnel and accounting issues, while the chief judge is responsible for the distribution of the caseload between the judges and for the functions of the court.

The National Courts Administration is responsible for the computer technology used in all courts, including centralised computer servers used for storage of data. The National Courts Administration also assists the courts in procurement issues such as negotiating nationwide agreements for travels, hotels, electrical power and other products used in the daily running of the courts.

C. Quality of Justice and its assessment; quantitative statistical data; monitoring procedures

1. Other than collection data on time used for dealing with the various type of cases, there is no other type of assessing quality of the judicial process.

2. As described in question B3 the National Courts Administration reviews biannually the courts’ workload. As part of this review The National Courts Administration receives statistics on how many cases that has been dealt with by the court in the last 6 months. The National Courts Administration is responsible for the collection of data, data analysis as well as the follow-up work.

There are no statistical data available regarding the professional evaluation of individual judges. Other than reviewing time spent on various types of cases in the different courts, there are no statistical available on the performance of judicial offices and/or chief judges.

3. The results of the biannual reviews are used in the manner described in question B3 to achieve both a better control of reasonable duration of proceedings and a better allocation of resources..

4. All actions regarding the quality of justice and the assessment thereof, including quantitative statistical data and monitoring procedures is the responsibility of The National Courts Administration. The judiciary i.e. chief judges, are responsible for collecting the data for his or her court and forwarding the data to The National Courts Administration when required.

D. Alternative dispute resolution

a) in general

1. ADR schemes in operation

The Norwegian Consumer Council has in co-operation with the relevant trade organisations established entities for solution of disputes between consumers and suppliers of different kinds of goods and services, ranging from complaints about dry cleaning and funeral agents to telephone services, financial services and reduction of the compensation from insurance companies.

These entities normally consist of representatives from the consumers’ organisations and the trade organisations and a neutral chairman. It is voluntary to use the entities for dispute resolution.

In each municipality there is a public office for family mediation, which in cases of separation or divorce assists the parents in reaching an agreement concerning parental responsibility, the right to visit and where the child shall permanently reside. Such mediation is mandatory if the parties have children in their marriage under the age of 16 years, and the parents are filing for divorce.

The so-called mediation and reconciliation service (“konfliktrådet”) mediates in both criminal and civil cases. Mediation is based on the parties’ voluntary participation and laymen conduct mediation. The mediation service is free of charge for the parties.

The purpose of mediation in criminal cases is to prevent new offences from taking place. The objective is to be attained by allowing the offender and the aggrieved party to meet and to reach a written agreement with some kind of settlement.

The Bar Association offers mediation. This mediation process is voluntarily, and the parties bear the costs.

The parties are in many cases offered in–court ADR, see below.

2. There are no legal provisions ensuring State supervision over ADR agencies. As described above, most ADR–processes involves a public body of some kind. Mediators do normally not have formal training in mediation before being appointed. The Bar Association is offering training for its members, and most members of public bodies conducting mediation is given some kind of training.

3. Legal aid will in certain cases be applicable to ADR procedures. See the description of legal aid above.

4. We do not have general rules protecting confidentiality in mediation processes. In most cases confidentiality will be protected either by other rules, or by the internal guidelines of the entity conducting the mediation.

5. When making orders relating to the loosing party’s coverage of the winning party’s legal costs, the judge may consider refusal to accept an amicable settlement or other offer to solve the conflict, and on this basis reduce the compensation or deny compensation of trial expenses and costs.

b) in court ADR

Reference is made to the paper written by Christian H P Reusch to the European Conference of Judges in Strasbourg 24–25 November 2003, see separate attachment.

The Norwegian courts have a general power to mediate between the parties.

Since 1997 a pilot scheme of judicial mediation has been in force. The scheme now covers approximately one quarter of the courts of law, and shall continue until 31 December 2005.

Rules of procedure are laid down in a government regulation of 13 December 1996 no. 1144. According to these regulations, the court shall decide whether or not mediation shall take place. The issue of mediation shall be considered when a writ or an appeal is filed with the court and at the latest when a defence is filed. The parties shall be given the opportunity to express an opinion. When making its decision, the court shall have regard to the views of the parties, the likelihood of reaching a settlement and the extent to which judicial mediation can contribute to simplifying the case notwithstanding that a full settlement is not reached. The decision of the court cannot be appealed, whether the decision provides that judicial mediation shall take place or that it shall not.

The rules presuppose that the court, usually the judge assigned to prepare the case for trial, shall study the case properly at a very early stage of the proceedings. The purpose of this is to ensure that the case is dealt with satisfactorily from the start and that it is administered or at least followed closely so that the court can intervene if necessary.

Judicial mediation is conducted by a judge of the court or “a person with knowledge of judicial mediation and/or the points of dispute raised by the case”. The chief judge of the court may keep a list of external persons who can be called as mediators to the court.

In general, the rules leave it to the mediator to determine how the mediation shall be conducted, including whether both parties shall be present at the mediation meetings, or whether they shall meet separately. Judicial mediation takes place in chambers. Consequently, the meetings are not open to the public. Evidence may be submitted if both parties consent and to the extent the mediator deems fit. The proceedings are recorded in minutes, and they are confidential.

The task of the mediator is to attempt to reach a settlement between the parties. The mediator may suggest alternative solutions to the dispute or to parts of it. He or she may also attempt to simplify the case, for instance by encouraging the parties to withdraw factual or legal allegations that are clearly unsustainable even though this does not resolve any of the issues in dispute. It is within the power of the mediator to “tidy up” the dispute.

If the parties reach an agreement, they may request that the agreement be formalised as an in-court settlement. This takes place at a court sitting presided over by a judge and in accordance with the ordinary rules concerning in-court settlements. If no settlement is reached, the preparation of the case continues as if nothing has happened. As a general rule, the case will be deemed ready to be listed for trial. Where a judge has conducted judicial mediation, he or she will be disqualified from participating in the continued preparation of the case and from judging it at trial unless the court finds that this would be unproblematic and both parties agree.

c) Out of court ADR

There is no judicial control with out–of–court ADR. As with all agreements subject to Norwegian law, the party may claim that the agreement is unfair, and must be revised by the court.

d) ADR in administrative law disputes

ADR is possible in most administrative law disputes, and the person representing the entity will in most cases have the power to settle the dispute. In other administrative law disputes, such as disputes regarding whether at child shall be put in the care of the child care department or whether someone shall be committed to a mental hospital, ADR is not possible.

e) criminal law and ADR

In the Norwegian legal system, the prosecuting authority and the courts of law are strictly separated, so that the courts do not act except on the application of the prosecuting authority, and the court ceases if the application is withdrawn. Under this system the judge takes no part in obtaining information and evidence necessary in the case. If guilt has been established in a criminal case, the prosecuting authority can decide that it shall be transferred for mediation to the mediation and reconciliation service.

E. Case management

a) in general

1. In civil cases it takes in average 7 months until a judgement is pronounced in the first instance courts and 9,4 months until at judgement is pronounced in the appeals courts. For the Supreme Court the figure is 10,5 months.

In criminal cases a full hearing in first instance courts takes in average 3,1 months from the indictment has been served. In the modified procedure used in confession cases (see answer c) 2 below) the period is reduced to 0.6 months. In the appeals court the average time ranges from 4,3 to 6,5 months depending upon whether the appeal is decided solely by the three professional judges, by a panel of the three plus four lay judges or by a jury. The average time in the Supreme Court is 5,0 months.

The data for these statistics are obtained through the centralised administrative computer system used by the courts.

2. Work is currently in progress in Norway on a new Dispute Resolution Act. In the draft version of the new act, the main elements include provisions on active participation by the judge in administering the proceedings, provisions to ensure that cases are dealt with efficiently, and provisions to ensure proportionality between the importance of the issue and the resources that are expended in resolving it. Justice Lars Oftedal Broch described the provisions of the new act in his report to the European Conference of Judges in Strasbourg 24–25 November 2003. When the Act enters into force, the judge will have extended powers to control the parties’ activities and ensure that the cases are dealt with efficiently. Even today the judge has some powers in this regard.

3. During the preparatory proceedings, a single judge makes most decisions. In the district courts cases are decided by only one professional judge. However, he or she will be joined by two lay judges in all criminal cases where there is a full hearing and in certain civil cases as well. On appeal the case will be decided by a panel of judges joined by lay judges as the case may be.

b) in civil disputes

1. Most of the principles in Recommendation No.R (84) 5 were a part of The Norwegian Civil Procedure Act even before the recommendation was given. The specific aspects of the Civil Procedure Act are described below.

2. and 3. There are no simplified procedures as such under Norwegian law. The Norwegian procedural rules are however, quite flexible, and the procedure may be adjusted in accordance with the complexity of the case. See (4) below for procedures that may be described as simplified.

4. Summary judgement is as such not known in Norwegian procedural law. The following points may however be of interest:

4.1

(i) The process of legal enforcement of claims is different from the ordinary procedure in civil cases. The procedure is somewhat simplified and summarily, and is much faster than the ordinary procedure. As a main rule, the process is exclusively written, but in some cases there may be an oral hearing.

(ii) The judge has power to decide summarily on the enforcement of uncontested debts.

(iii) A judge has the power to decide summarily on disputes concerning small claims, claims up to € 2 500.

5. An order to pay before the judgement is final does not exist.

6. There are no time-limits as such. There are, however, administrative targets that presently apply to the district courts: No civil case should take more than 6 months from a case came in to the court until a judgement is pronounced and no criminal case should take more than 3 months.

7. A party may as a temporary precautionary measure in enforcement proceedings obtain an interlocutory measure, in order to secure a claim for enforcement, or protect his rights from being violated.

The party must render probable the existence of his claim and the need to secure the claim. The judge decides, on the basis of the information the party has given him, whether the other party shall be informed and heard, and whether an oral hearing is necessary.

8. The Norwegian system gives a party the right to challenge the opposite party to reveal facts of his case or to furnish proof of a specific matter. The court may order the party to reveal the facts or furnish the proof.

9. Under Norwegian law a judgement is only enforceable when the judgement is final and thus legally binding. Before a legally binding judgement exists, the party must secure his rights through temporary precautionary measures.

10. All judgements determining the case may be appealed from the first instance court to the appeals instance court. For cases where the value of the claim is less than € 2 500, appeal is only possible if the appeals court consents. Most, but not all, procedural rulings may also be appealed from the first instance court to the appeals court.

Judgements from the appeals court may be appealed to the Supreme Court. The Appeals Selection Committee allows the appeal. As a main rule only cases where a decision from the Supreme Court will be of importance also in other cases are heard by the Supreme Court. In addition, claims less than € 12 500 require a special consent from the Appeals Selection Committee.

c) criminal matters

1. In the Norwegian legal system, the prosecuting authority and the courts of law are strictly separated, so that the courts does not act except on the demand from a person entitled to prosecute, and ceases to act when the demand is withdrawn. The prosecuting authority may waive prosecution, and thereby terminate the prosecution of a criminal offence. In some minor offences, such as traffic offences, the prosecuting authority issues a writ to the person charged prescribing a fine which the person himself decides whether to accept. In cases in which the person involved makes an unreserved confession in court, more summary proceedings are used.

2. In cases concerning a criminal act punishable by imprisonment for a term not exceeding 10 years, and where the person involved makes an unreserved confession in court which is corroborated by the other evidence, the case may on application from the prosecuting authority and with the consent of the person charged, be adjudicated by a court of summary jurisdiction without an indictment and main hearing, unless the court finds this inadvisable.

3.
(i) The prosecuting authority may terminate the prosecution of a criminal act that has been committed without preferring an indictment. The prosecuting authority may decide to terminate the prosecution in all kind of cases, also where adequate evidence has been found.
(ii) In some minor offences, such as traffic offences, the prosecuting authority issues a writ to the person charged prescribing a fine which the person himself decides whether to accept. The size of the fine is fixed.
(iii) As described above, the prosecuting authority can decide that a criminal case shall be transferred for mediation to the mediation and reconciliation service if guilt has been established and both the person charged and the aggrieved party consent.
(vii) Notification of summons and decisions of the court is normally done by mail. Only if the receiver does not return a receipt for having received the documents is notification done through the bailiff.

4. The bench has no role in investigation, as the prosecuting authority and the courts of law are strictly separated. In cases tried before a jury, it is the jury, which finds the guilt. Four of the jurors and three professional judges together determinate the penalties.

THE ROLE OF THE JUDGE IN ACTIVE DIRECTION OF PROCEEDINGS, PARTICULARLY IN CONNECTION WITH MEDIATION AND JUDICIAL MEDIATION

By Christian H P Reusch, Legal Counsel at the Office of the Attorney General, formerly Secretary to the Law Reform Committee on Dispute Resolution

1. Introduction

The Norwegian civil procedure legislation is at present undergoing reform. The Law Reform Committee on Dispute Resolution, appointed by Royal Decree of 9 April 1999, delivered its report on 20 December 2001. The terms of reference of the Committee were to undertake a thorough review of the legislative provisions relating to the procedure in civil cases before the courts. The terms of reference were elaborated by the Ministry of Justices in its commentary to the Royal Decree, which states, inter alia:

      “ The Ministry particularly requests the Committee to consider the following issues:

          1. The role of the judiciary and the consequences that the development of that role ought to have on the rules of procedure. Compared with the position when the current Civil Procedure Act was introduced, the judiciary today is expected to play a more active part in the preparation of the case and during the main hearing, and has a responsibility for ensuring that the case proceeds efficiently and that it is adequately clarified.
          6. Various forms of mediation under the auspices of a judge or other person are an important alternative to a judgement of the court. The need for new and more detailed provisions relating to mediation and settlement, including judicial mediation, should be considered.”

The current rules of procedure in civil cases are contained in the Civil Procedure Act of 1915. In its Report, the Law Reform Committee submitted a proposal for a new Dispute Resolution Act that will entirely replace the Civil Procedure Act.

The main elements in the draft statute include provisions on active participation by the judiciary in the administration of proceedings, provisions to ensure that cases are dealt with efficiently, and provisions to ensure proportionality between the relative importance of the issue in dispute and the resources that are expended in resolving it. The primary purpose of the draft is to assist in limiting, or rather reducing, the cost associated with litigating civil cases before the courts. This requires that the focus in the proceedings must be concentrated on the main issues in dispute, and that the unnecessary submission of evidence on issues that are of minor importance to the resolution of the case is avoided. This will not happen by itself. It will require that the judge to whom a case is allocated plays an active role in administrating the preparation of the case, that he or she ensures that the proceedings are concentrated and has due regard for the interests of proportionality.

Although a case is filed with the courts, the delivery of a judgement need not necessarily be the best method of resolving the case, neither for the parties nor for the courts. There are a number of reasons why a settlement between the parties may be preferable. I return to the advantages and the consequences that settlement may have later. An obvious and natural part of the judge’s active administration of the preparatory proceedings will be to give due consideration to the possibility of resolving the dispute by way of mediation or settlement. This paper describes in brief the prevailing view in Norway of the present and future role of the judge in mediation and judicial mediation.

The Report of the Law Reform Committee is currently being dealt with by the Ministry of Justice. It is likely that a law proposal based on the Committee’s draft will be presented to the Norwegian parliament in spring 2005. A prediction of what the Ministry’s proposal is likely to be is given in the final part of this paper.

2. Alternative Dispute Resolution – Mediation

2.1 Introduction

The Law Reform Commission dealt with alternative dispute resolution in quite some depth in its Report. Alternative dispute resolution in this respect refers to the analysis and discussion of dispute resolution mechanisms other than judgement. The main focus of the Committee’s proposals for alternative dispute resolution was various provisions that can pave the way for an amicable solution.

Arbitration is also an alternative to judgement by the ordinary courts of law. The Law Reform Committee considered arbitration in detail, but suggested that rules relating to arbitration should be embodied in a new and separate Arbitration Act, and not included in the new Dispute Act. Arbitration is not discussed in this paper.

2.2 The Consequences of Resolving Disputes Outside the Ordinary Courts

Even today, most disputes are resolved amicably and as a general rule an amicable solution will be the best solution to a dispute. The parties either come to an agreement on a solution, or one of the parties decides not to pursue a claim that he purports to have. Both alternatives will usually be favourable methods of resolving a dispute, provided that the reason for not pursuing the case before a court is not an imbalance in the relative bargaining position of the parties.

It is clearly unfortunate if an amicable solution is the result of pressure or unequal bargaining power between the parties, or if the reason why one of the parties decides not to bring an action is that it would be too expensive to get a judgement for the claim.

In a broad perspective, it is important that individuals are willing to resolve their disputes between themselves. Generally speaking, willingness to compromise reduces the risk of being involved in litigation. Furthermore, it is vital from the point of view of the courts that disputes in general are resolved amicably without the involvement of the courts. If the courts are to have the ability and resources to resolve the cases that are brought before them they must not be burdened with disputes that could have been resolved in another way.

Even where disputes go so far that they are filed with the courts, there is a long tradition in Norway of resolution by agreement or of proceedings being discontinued. As a general rule, a party who wishes to institute civil proceedings must first summons the potential defendant to mediation before the Conciliation Board (see 5. below), whose primary role is to mediate between the parties in an attempt to reach a settlement. A number of cases are resolved this way. In certain kinds of cases, for instance matrimonial and custody cases, mediation has to take place before special mediation bodies prior to the initiation of formal proceedings, again in an attempt to reach an amicable solution to the dispute if possible.

Last but not least, once proceedings have been filed with the ordinary courts the judge has a general power to mediate between the parties, see section 99 of the Civil Procedure Act.

In my view, there are a number of factors to be taken into account when considering the rules relating to mediation and judicial mediation:

a) In cases where the parties are free to manage their legal affairs by way of agreement, it is generally pointless to seek to resolve disputes by way of judgement as opposed to by mediation or settlement, or by some other process that is less destructive to the relationship between the parties.

b) Even where a case is brought before the Conciliation Board of the Courts, it need not necessarily be important for the parties to be given a judgement. The essential issue is usually to resolve the dispute. An important factor, however, is to arrive at a resolution that observes important principles of justice, including impartiality on the part of those involved in the decision-making process, cost- and time efficiency, equality of arms and fairness.

c) Principles of impartiality can also be observed where a solution to a dispute is sought through mediation or other dispute resolution methods that are apt to further a solution by way of negotiation. There is no contradiction between impartiality and settlement, even in circumstances where a third party mediator makes his view on the dispute quite clear, provided of course that the views are clearly and objectively founded in the information that has been submitted.

d) Both time and money will often be saved if efforts are made to reach an amicable solution early in the proceedings. It may be possible to curtail often lengthy preparation, and to dispense with the main hearing altogether. The savings for the parties can often be great.

e) Fairness and substantive justice can be difficult to judge. If a settlement is reached during the early stages of a complicated process where the facts are somewhat unclear, the crucial issue will often be whether the settlement appears reasonable in light of the procedural risk involved. In such circumstances, it is important to ensure that none of the parties has an unfair advantage over the other(s) due to inequality of resources, as regards both the relative capacity and ability to comprehend the substance of the dispute, and during the negotiation process.

f) In many cases it is important for the parties to reach an amicable solution. There can be a considerable intrinsic value in the parties themselves participating in the formulation of an acceptable solution to a legal dispute. This may particularly be the case in employment disputes, neighbour disputes and in commercial disputes where the parties may wish or be required to maintain a business relationship in the future, and even more so in family disputes. The future relationship between the parties may be made much easier if the dispute is settled amicably rather than by a judgement of the court. However, this need not be the case. It may be important to get a judgement of the court because the legal position is doubtful and needs clarifying for the sake of pending or future disputes. In other words, where a case involves issues of principle there are arguments against resolving it by way of settlement.

g) An important consideration is that mediation may result in wasted time and money, and may even delay the final resolution of the dispute. This must be borne in mind when identifying cases that are suitable for mediation and when making the enquiries that are necessary in order to determine whether mediation has any real purpose.

h) An amicable settlement will only be preferable to a judicial resolution if the settlement proceedings are carried out in such a manner that the parties have no grounds to perceive the settlement as being the result of unreasonable pressure. The Law Reform Committee on Dispute Resolution found that there was no reason to believe that this had been a problem in the past in connection with judicial settlements. There are, however, examples of reported cases where the parties have alleged that they have been pressurised to agree to a settlement. Such situations must be avoided if public confidence in the courts of law is to be inspired.

The conclusion of the Law Reform Committee was unambiguous: in general, settlement is a beneficial method of resolving legal disputes. Rules of procedure should be formulated to enable a settlement to be reached in cases where an amicable resolution is appropriate in view of the nature of the case.

2.3 Existing Formalised Methods of Mediation/Amicable Resolution

It should be mentioned that there exist today a number of other methods of dispute resolution as alternatives to judgement, in addition to mediation and judicial mediation. With the exception of mediation before the Conciliation Boards, most of these are limited to specific types of disputes. The following schemes exist today:

– Mediation before the Conciliation Board
– Mediation before the Criminal Mediation Board
– Mediation/negotiations inter partes in employment protection cases
– Mediation before the review panel in consumer protection cases
– Arbitration proceedings in construction cases
– Complaints between private individuals and administrative agencies, administrative complaints and complaints to the Parliamentary Ombudsman for Public Administration
– Ordinary mediation conducted by legal counsel.

There are also a number of methods of alternative dispute resolution that, as yet, are not institutionalised in Norway. Alternative dispute resolution (ADR) is in major growth internationally, partly as a consequence of the need to ease the burden on the ordinary courts of law. First and foremost, however, the purpose has been to create methods of dispute resolution that are more suited to the needs and interests of the parties. The USA has been a pioneer in this respect, and American methods of alternative dispute resolution have been used as models in the development of similar methods in other countries. The civil procedure reform that entered into force in England a few years ago identifies alternative dispute resolution as a primary method of solving legal disputes.

The Law Reform Committee on Dispute Resolution limited its proposals to judicial mediation, i.e. mediation under the auspices of the judiciary.

3. The Obligation of the Parties to Clarify the Legal and Factual Basis for the Claim
One of the main issues raised by the Law Reform Committee was whether it was possible to formulate rules of procedure that could be conducive to establishing a climate and a culture for amicable resolution of legal disputes. The Committee believed that there was reason to be optimistic here. There is a general tendency today to view the courts as the final resort or, at least, as an option only to be tried when all other methods of dispute resolution have been attempted and failed.
An important precondition for attaining a climate and a culture for amicable resolution is that the rules of procedure oblige the parties to submit and substantiate the claim and to clarify the facts between themselves before legal proceedings are instituted. This includes a duty on each of the parties to inform the other party about important evidence of which they are aware. The parties must have a reasonable basis upon which to assess their legal position, before and independent of whether a claim is raised.

The Law Reform Committee has proposed a number of rules whose purpose is to promote this. Broadly speaking, the rules shall encourage the parties to be more open towards each other prior to the institution of proceedings with regard to the claim itself, the basis for the claim and the evidence in support of the claim. The intention is that increased openness and generally increased awareness of the importance of amicable dispute resolution will together promote the creation of a culture for more openness. Failure to observe the provisions relating to openness can have implications for the duty to pay and the right to be awarded costs. If it is likely that court proceedings could have been avoided if there had been greater openness from the start, there will usually be no reason why the party who withheld the information should be awarded costs even though he succeeded at the trial.

4. Non-Judicial Mediation
In order to emphasise the importance of non-judicial mediation as a dispute resolution institution, the Law Reform Committee found that rules relating to non-judicial mediation should be laid down in the Dispute Act. The Committee was of the opinion that this could also help to promote a culture for amicable dispute resolution. In the draft, these rules are placed together with the other provisions relating to rights and obligations prior to the institution of proceedings. It should be emphasised that the proposal to legislate on rules on non-judicial mediation does not reflect any intention to establish some form of competition with mediation by legal counsel and other institutionalised mediation practices. These are important schemes which it is hoped will continue. The mere fact that such schemes exist, however, could not justify a decision to refrain from legislating on rules on non-judicial mediation.

5. Mediation before the Conciliation Board
The Conciliation Boards are composed of three members appointed by the local council for a term of four years. There is no specific requirement as to legal or mediation experience or qualifications. Members of the Conciliation Boards are often recruited from amongst former local councillors.

Mediation takes place in meetings attended by all three members of the Conciliation Board and the parties. Meetings are held in camera. Some Conciliation Boards will allow the parties to be legally assisted during mediation negotiations. Others will only allow the parties to be present, in which case legal counsel must wait outside.

The Law Reform Committee had a predominantly positive impression of the mediation carried out by the Conciliation Boards and found that they as a general rule manage to create a positive mediation climate. The experience from some of the larger Conciliation Boards is particularly positive, where mediation is described as professional and efficient.

In large and complex disputes where the parties are legally represented, mediation before the Conciliation Board is usually considered inappropriate and proceedings are filed directly with the District Court. Both the caseload and the working method make mediation before the Conciliation Board most suited for mediation in simple cases. As a consequence, mediation before the Conciliation Board is not suitable for more extensive mediation in complicated cases. Furthermore, the members of the Conciliation Boards do not normally have the qualifications and expertise that are necessary to mediate in complicated legal matters or in cases that require particular technical skills.

6. Mediation by the Courts
The courts have a general power to mediate between the parties, see section 99 of the Civil Procedure Act. The provision gives no directions as to how such mediation shall take place. In practice, there are large variations in the degree to which individual judges take an initiative to mediate and how such mediation is carried out. Some judges never attempt to mediate with a view to reaching a settlement, whereas others try to force the parties to “settle” in almost every case. Both of these extremes are unfortunate, although the latter is the most unfortunate.

There is no consensus as to what is acceptable within the framework of ordinary mediation before the courts. For instance, opinions differ on how far the judge may and ought to go in expressing his points of view on the issues raised by the case. Similarly, there are differences in opinion as to whether the judge should hold meetings with each of the parties one-at-a-time, whether the judge can hold meetings with the parties alone whilst legal counsel wait outside, etc.

Mediation will normally take place at a court sitting, which as a general rule will be open to the public. This in itself can be incompatible with a positive mediation climate.

Nor is ordinary mediation subject to any particular rules of confidentiality, neither for the judge nor for the parties.

In the district courts, the judge to whom a case has been assigned will often both take charge of the preparation of the case and determine the outcome of the trial. This will normally still be the case even if the judge initiates and presides during mediation. If in the course of mediation the judge takes an obvious stance in the issues raised by the case, the parties may consider it unreasonable or unfair that the same judge shall determine the case at trial. In extreme cases, the judge will have to withdraw from the case on the grounds of impartiality, see section 108 of the Court of Justices Act. However, in practice, the circumstances have to be quite exceptional before a judge will be deemed to be impartial in such cases.

Not surprisingly, both the lack of special rules of confidentiality and the fact that cases normally continue under the administration of the judge who leads the mediation, can lead to a more reserved and restrained attitude towards mediation. A party may for instance understandably be reluctant to discuss the strengths and weaknesses of a case, or make known his views on the primary purpose of the case, for fear that admissions and acknowledgements may influence the outcome of the case if mediation is unsuccessful.

7. The Pilot Scheme of Judicial Mediation and Evaluation of the Scheme

7.1 The Scope of the Pilot Scheme

Section 99a of the Civil Procedure Act, which was added by statutory amendment of 6 September 1996 no 64, set up a pilot scheme of “extended mediation” to be exercised at certain designated district courts and courts of appeal in civil cases – so-called judicial mediation. The scheme entered into force on 1 January 1997 and applied initially to five courts of first instance and one court of appeal. The scheme has since been extended both in time and scope several times. Following an amendment that entered into force on 1 January 2003, the pilot scheme shall continue until 31 December 2005 and now covers 20 courts of law, representing approximately a quarter of the courts of first- and second instance in Norway.

Rules of procedure are laid down in a government regulation of 13 December 1996 no. 1144. According to these regulations, the court shall decide whether or not mediation shall take place. The issue of mediation shall be considered when a writ or an appeal is filed with the court and at the latest when a defence is filed. The parties shall be given the opportunity to express an opinion. When making its decision, the court shall have regard to the views of the parties, the likelihood of reaching a settlement and the extent to which judicial mediation can contribute to simplifying the case notwithstanding that a full settlement is not reached. The decision of the court cannot be appealed, whether the decision provides that judicial mediation shall take place or that it shall not.

The rules presuppose that the court, usually the judge assigned to prepare the case for trial, shall study the case properly at a very early stage of the proceedings. The purpose of this is to ensure that the case is dealt with satisfactorily from the start and that it is administered or at least followed closely so that the court can intervene if necessary.

Judicial mediation is conducted by a judge of the court or “a person with knowledge of judicial mediation and/or the points of dispute raised by the case”. The chief judge of the court may keep a list of external persons who can be called as mediators to the court.

In general, the rules leave it to the mediator to determine how the mediation shall be conducted, including whether both parties shall be present at the mediation meetings, or whether they shall meet separately. Judicial mediation takes place in chambers. Consequently, the meetings are not open to the public. Evidence may be submitted if both parties consent and to the extent the mediator deems fit. The proceedings are recorded in minutes, and they are confidential.

The task of the mediator is to attempt to reach a settlement between the parties. The mediator may suggest alternative solutions to the dispute or to parts of it. He or she may also attempt to simplify the case, for instance by encouraging the parties to withdraw factual or legal allegations that are clearly unsustainable even though this does not resolve any of the issues in dispute. It is within the power of the mediator to “tidy up” the dispute.

If the parties reach an agreement, they may request that the agreement be formalised as an in-court settlement. This takes place at a court sitting presided over by a judge and in accordance with the ordinary rules concerning in-court settlements. If no settlement is reached, the preparation of the case continues as if nothing has happened. As a general rule, the case will be deemed ready to be listed for trial. Where judicial mediation has been conducted by a judge, he or she will be disqualified from participating in the continued preparation of the case and from judging it at trial unless the court finds that this would be unproblematic and both parties agree.

The regulations contain rules regarding remuneration to judicial mediators, expert witnesses and witnesses for their services. A mediator who is not a judge is entitled to remuneration, which may be fixed by agreement between the mediator, the parties and the court. In the absence of such agreement, remuneration is paid in accordance with the rates for free legal aid. As a general rule, the costs of judicial mediation shall be shared equally between the parties, although the parties may agree otherwise or it may be agreed that the court shall determine the apportionment of costs once mediation proceedings are completed. If the case is not settled through mediation, the costs of mediation shall be determined together with the costs of the case as a whole.

7.3 The Pilot Scheme in Practice

The number of cases that are sent to judicial mediation varies greatly from court to court. The trend shows a general increase in the number of cases where judicial mediation is attempted. The success rate is relatively stable at between 82 and 84 percent. This figure includes both cases where a settlement is reached during judicial mediation, and cases that are settled after judicial mediation proceedings are closed.

The general impression of the courts that have participated in the pilot scheme is that judicial mediation has led to a slight increase in the number of cases that are settled, and that in many cases a settlement is reached at an earlier stage of the proceedings than previously. There is also a general impression that the participants are satisfied with the scheme and with the manner in which the mediation is conducted. Not surprisingly, this is particularly the case where mediation results in a settlement.

There are different ways of approaching the parties with a view to suggesting judicial mediation. The most usual method is that the court sends a letter to the parties together with the defence pleading, asking whether they consider the case to be suitable for mediation. If one of the parties is especially opposed to the idea, mediation will not be initiated. However, the judge assigned to prepare the case will often phone the parties’ legal representatives to discuss whether there is any point in attempting mediation.

Mediators who are not judges at the court in question have been appointed in only a few exceptional cases. In the few cases where outsiders have been used, they have been practising lawyers and the experiences are positive. Interest for judicial mediation amongst the judges at the courts covered by the pilot scheme varies. Some of the judges who are less enthusiastic about the scheme have referred mediation cases to their more enthusiastic colleagues. Very occasionally the mediating judge has sought the assistance of an expert in agreement with the parties, and the experience here is also positive.

Where mediation has failed and a settlement has not been reached, the case has, with only a few exceptions, been transferred to one of the other judges at the court to continue the preparation of the case. This has not led to practical problems.

There appears to be consensus that the judicial mediator should be entitled to suggest or hint at possible solutions to the dispute as part of the mediation process. On the other hand, the right of the mediator to express an opinion as to the likely result if the case should go to trial is viewed with scepticism. It is important that mediation does not turn into a mini trial. However, the right of the mediator to express his or her opinions on the strengths and weaknesses of the case is viewed more positively.

The only appellate court to participate in the pilot scheme is the Agder Court of Appeal. The Court regards the scheme as beneficial, and is of the view that there is doubtless a potential for mediation in the courts of appeal, provided that the cases are carefully screened.

7.4 Evaluation of the Scheme

In order to provide a proper basis upon which to assess whether the pilot scheme should become a permanent feature of the procedure in civil cases in Norway, the Ministry of Justice and the Law Reform Committee commissioned an evaluation of the pilot scheme. The evaluation was carried out by Richard H. Knoff.

When section 99a of the Civil Procedure Act and the pilot scheme were introduced, the Ministry of justice expressed its views as to what it expected to gain from a mediation scheme. The expected benefits and hesitations can be divided into three groups:
– Issues related to the actual mediation process
– Issues related to the outcome of the dispute proceedings
– Issues related to productivity.

Under 7.6 below, the benefits that the Ministry expected to gain and the hesitations that were expressed within each of these groups are discussed in brief, together with the conclusions from the evaluation.

In addition to certain expectations, the Ministry also laid down certain requirements as to how judicial mediation ought to function. Some of the requirements were indeed means to attaining the aims that are mentioned above. In part, however, the requirements were also aims in themselves. The Ministry pointed to the following requirements:
– The parties must receive proper information concerning the mediation process
– The parties must be given adequate time to discuss and deliberate over different alternatives and offers
– The parties must be given the opportunity to express their views and their interests
– The mediators must have the confidence of the parties
– The mediators must not exert pressure on the parties
– The parties must perceive the outcome as reasonable/fair
– If a settlement is not reached, the parties must trust the mediator to keep silent towards the judge to whom the case is transferred
– Mediation must be a scheme that is used in practice.

Furthermore, the Ministry stated that the pilot scheme should provide answers to the following questions:
– Whether the current procedural and alternative dispute resolution schemes are sufficient
– Whether certain kinds of cases are particularly suited for mediation
– What are the relevant considerations when determining whether judicial mediation is desirable or not?
– Whether mediators should act as “judges” or “facilitators”
– Which factors mediators take into account when formulating alternative solutions
– The importance of confidentiality in relation to the proceedings
– Who should be mediators, and what training should be given, including the suitability of judges as mediators and the use of external mediators?

The conclusions attached to these requirements and questions are also discussed in 7.6 below.

7.5 The Conduct of the Evaluation

The evaluation was based on information gathered from judicial mediators, the parties who had participated in judicial mediation, and their legal representatives.

It was of particular interest to ascertain whether there were coinciding views amongst the parties to the dispute, their legal representatives and the mediators regarding the tone and climate during the proceedings, the contribution of the various participants to the proceedings, the level of creativity in the proposed solutions, the role of the mediator etc. It was also important to find out whether there were systematic differences in the view of these groups.

The material was gathered using questionnaires, in-depth interview and statistics derived from the courts that have participated in the pilot scheme.

7.6 What did the answers show?

The conclusions from the survey are as follows:

The mediation procedure

Requirements

– The parties must receive proper information concerning the mediation process:

      This requirement is fulfilled in the majority of cases. A small minority of the parties and legal counsel has difficulty in understanding that mediation is not a mini trial.

– The parties must be given adequate time to discuss and deliberate over different alternatives and offers:

      This requirement is fulfilled in the majority of cases.

– The parties must be given the opportunity to express their views and their interests:

      This requirement is fulfilled in the majority of cases.

– The mediators must have the confidence of the parties:

      This requirement is fulfilled in the majority of cases. Confidence in the mediator is slightly less in cases where a settlement is not reached.

– The mediators must not exert pressure on the parties:

      A relatively large number of parties feel mildly pressurised by the mediator. This is not perceived as negative, and may contribute to reaching a settlement. A very small number of parties feel that they were heavily pressurised, and are seriously dissatisfied with the settlement.

– The parties must trust the mediator to keep silent towards the judge to whom the case is transferred:

      A rather large proportion of the parties and their legal advisors are doubtful as to whether the duty of confidentiality is observed.

Benefits

– Verbal contact improves communication between the parties:

      The level of verbal contact varies depending on whether meetings are held individually with each party or together. As a general rule verbal contact only improved the communication slightly.

– Individual meetings with the judicial mediator enables the parties to express their views and test their arguments without the other party present:

      Individual meetings are common, particularly where the judicial mediator is experienced, and are welcomed amongst both the parties and their legal representatives.

– The parties can get an indication of the likely outcome of a trial:

      Most judicial mediators are reluctant to give such indications. However, the parties may interpret suggestions and comments from the judicial mediator as a prediction of a judgement. In cases where the parties think they have been given an indication, they generally perceive this to be a positive contribution to the mediation.

– The role of the judge as mediator is clearer; he or she can make specific suggestions to a resolution without bringing his or her impartiality into question:

      Mediators vary in how explicit they are. However, both the parties and their legal representatives state that the mediator is usually the most active of the participants. Suggestions to a resolution of the dispute are perceived to be a positive contribution to the mediation.

Hesitations

– Judicial mediation requires competence of a different kind than that which most judges normally possess:

      This is probably true, at least if the judicial mediator is intended to act as a “pure” mediator, see below.

– The role of the judge becomes ambiguous – the role of the courts should be to pronounce judgement, and they should not be drawn into new negotiations:

      Most of the parties and their legal representatives appreciated the courts’ assistance in resolving the dispute by mediation. A few find it difficult to understand and accept that the judge leads the negotiations. Many lawyers and some of the judges state that their continued support to judicial mediation as a permanent feature of Norwegian civil procedure depends on mediation being voluntary.

– There can be problems regarding impartiality where a judge plays an active role in mediation:

      This has not been a problem in practice since cases that are not settled have almost without exception been transferred to another judge to complete the preparation. Transfer to another judge should probably be obligatory. If not, the right to retain the same judge should be reserved for cases between commercial parties where both parties request the judge to retain the case.

– The parties’ confidence in the courts will diminish due to suspicions that there has been communication between the judicial mediator and the judge to whom a case is transferred:

      The duty of confidentiality imposed on the judge to whom a case is transferred is a critical principle in the scheme. As mentioned, a large proportion of the parties and their legal representatives suspect that the mediator relates some of the details to the new judge, whether consciously or not. This is worrying, although it does not affect public confidence in the mediator, the judicial mediation scheme or the judicial system. A majority of the parties say that their confidence in the judicial system has increased as a result of their experience with judicial mediation.

The outcome of the dispute proceedings

Requirements

– The parties must perceive the outcome as reasonable/fair:

      Most of the parties are only partly satisfied with the settlement. Their legal representatives are usually more satisfied. As a rule, the mediators consider the settlement to be reasonable/fair. In a very small number of cases, one of the parties considers the outcome to be very unreasonable, usually as a result of a strong - and occasionally exaggerated - belief in his or her own case. All in all, judicial mediation has resulted in a reasonable and fair settlement.

Benefits

– The mediator has the opportunity to ascertain the parties’ primary interests and needs and to propose a settlement in accordance with these:

      To a large extent, the mediators succeed in ascertaining the interests and needs of the parties, but creative solutions that go further and beyond the claims presented by the parties are rare.

– Settlement can be reached in circumstances where there is less pressure than during a trial:

      As mentioned, a number of the parties feel that they were put under mild pressure, but they usually perceive this as positive. A few found the level of pressure to be unpleasant. These may be parties who, according to the mediator and/or their legal representatives, had unrealistic expectations of the outcome of a trial.

– A settlement following a constructive mediation procedure makes the future relationship between the parties easier. There are no winners and no losers:

      In a few cases, judicial mediation helped to improve the relationship between the parties. More often than not, however, the relationship remained unchanged. Judicial mediation rarely worsened the relationship, which often is the case following a trial.

– The parties avoid publicity:

      This appears to be of little relevance for the majority of parties. A minority stated that the avoidance of publicity was one of several reasons for consenting to judicial mediation.

– The total strain on the parties is reduced:

      There is broad agreement amongst the parties that judicial mediation is far less staining than a trial.

Hesitations

– In cases where the parties have unequal financial resources and professional knowledge, the weaker part may have to compromise too much:

      There is certainly a risk that this can happen. If the parties are legally represented, the judicial mediators feel that they can assume that legal counsel will protect the interests of their client. Where one of the parties is not legally represented, many of the judges are mindful of the need to avoid obviously unreasonable settlements.

– There is a risk that mediators with no legal background can facilitate a settlement that is in breach of the law:

      Judicial mediation has not been attempted with mediators who are not lawyers. Opinions vary as to whether the parties should be allowed to agree on a settlement that is contrary to current law or general principles of reasonableness, as long they themselves agree.

Productivity

Requirements

– Mediation must be a scheme that is used in practice:

      In the course of the trial period, an increasing proportion of cases has been referred to mediation. The percentage of cases that are settled has been steady.

Benefits

– Cases can be closed sooner than with traditional dispute resolution:

      This benefit is often gained. Cases that are not settled are not significantly delayed.

– A settlement by way of judicial mediation reduces the costs for both the parties and for the courts:

      This benefit is gained. The average time saved by using judicial mediation as opposed to an ordinary trial, is 15 hours. In addition, less time will be spent preparing the case by the judge and legal counsel, and the judge will also save time since it will not be necessary to write a judgement.

– Even if a settlement is not reached, judicial mediation increases efficiency in the preparation of the case, it clarifies the main issues in the dispute and facilitates a procedural clean-up of the case:

      According to the judges, this is often the case. Legal representatives are more doubtful.

Hesitations

– The scheme will complicate matters and cause delays:

      There is no evidence to suggest that this objection is justifiable.

– If a settlement is not reached, transfer of the case to a new judge leads to duplication of work:

      This is an expense that has to be taken into account. However, over 80 percent of cases that are referred to judicial mediation end in a settlement, and the preparation is often less time-consuming compared with the time saved where a settlement is reached.

– The costs increase if a settlement is not reached:

      This is true, and may be a problem in small claims cases.

Questions requiring clarification

– Are certain kinds of cases particularly suited for mediation?

      A large number of judges are of the opinion that the nature of the case is largely irrelevant. Cases concerning real property, including sale- and purchase, family cases, debt cases, employment cases, construction cases and neighbour disputes are all considered to be particularly suitable for judicial mediation. Cases where one of the parties is a public body and cases concerning access to and contact with children are not considered to be particularly suitable for judicial mediation.

– What are the relevant considerations when determining whether judicial mediation is desirable or not?

      The main motivation for consenting to judicial mediation is that the dispute can be resolved more cheaply. Fear of losing the case is rarely a relevant factor.

– Should mediators act as “judges” or “facilitators”?

      The willingness of the parties to settle a case is strongly influenced by indications given by the judges as to what would be reasonable and regarding the likely outcome at a trial. Although many parties and legal representatives appreciate these signals, the basis upon which they are made is thin, and there is a risk that they diminish the legitimacy of the courts and judicial mediation as an institution. A judicial mediator should probably be entitled to point to weaknesses in a party’s case at an individual meeting with that party, but the mediator should emphasise that he does not intend to express a view on the likely outcome of the case as a whole.

– Which factors do mediators take into account when formulating alternative solutions?

      Judges who have acted as judicial mediators are most concerned that their suggestions contribute to a reasonable and fair solution. They are less concerned to get the parties to meet half way.

– The importance of confidentiality in relation to the proceedings

      The observance of confidentiality with regard to what has taken place during the mediation process is extremely important if the parties are to be open with each other. However, there is more doubt as to whether a general duty of confidentiality should apply once a legally binding solution has been reached.

– Who should be mediators, including the suitability of judges as mediators and the use of external mediators

      The judges who have acted as mediators in the pilot project have on the whole functioned well. Personal skills and interest in the role of mediator are crucial. Judges who are reluctant to mediate should be exempt. External mediators have not been used during the evaluation period. One court reports that it has had positive experience with handpicked mediators in special cases. The power to call mediators who are not judges should be retained.

– What training should be given?

      As mentioned above, the role of mediator requires different working methods and, to a certain extent, different professional skills than those traditionally required of the judiciary. Both judges and external mediators should be given training in mediation philosophy and mediation techniques.

The main conclusion of the evaluation is summarised as follows:
The evaluation confirms that judicial mediation on the whole has functioned well from the point of view of the parties, legal representatives and the mediators. The scheme is time- and cost-efficient, and seemingly fulfils a function that is not covered by the present procedural system and existing alternative dispute resolution institutions.

In the light of the requirements, success criteria and hesitations that the evaluation was intended to control, there is no doubt that judicial mediation can safely become a permanent scheme, subject to a few adjustments and modifications.

7.7 The Conclusions of the Law Reform Committee regarding the Evaluation

In the view of the Law Reform Committee, the evaluation showed that the pilot scheme on the whole had been a positive feature, and that it should become an integrated and natural part of the Norwegian procedural system. The evaluation also provided the Committee with valuable information for the formulation of rules to be applied to judicial mediation. The Committee found that there is reason to believe that as time progresses and judicial mediation becomes a natural feature of the Norwegian legal system, the benefits to be gained from judicial mediation may be even greater than those experienced by the courts that have participated in the pilot scheme.

The evaluation showed, however, that certain modifications should be made before the scheme is established permanently. I will now describe in brief the Committees proposals for a permanent judicial mediation scheme.

8. The Main elements of a Permanent Judicial Mediation Scheme

8.1 What Case Types?

The Law Reform Committee is of the opinion that, in principle, most types of cases are suitable for judicial mediation provided that they have dispositive rights over the subject matter of the dispute in the sense that they can regulate their rights by way of agreement. Certain kinds of cases are obvious candidates for judicial mediation. One such example is building and construction cases where there is often a considerable need to bring the case in order. Claims for price reduction or additional compensation etc are often be based on a series of unclear factual allegations. Thorough mediation proceedings may contribute towards clarifying the dispute and limiting it to a few main points of claim. Even though a settlement does not cover all of the issues in dispute, a mediation that simplifies the dispute may still represent a saving for both the parties and the court. Disputes concerning the seller’s and the seller’s agent’s liability for alleged defects in the sale of real property are also very common and the number appears to be on the increase. This kind of dispute and other disputes concerning real property, e.g. boundary disputes, neighbour disputes etc. – may be will suited for judicial mediation.

Commercial cases will often be suitable for judicial mediation, both because of the nature of the dispute and because the parties are often interested in maintaining a good business relationship once the dispute is resolved. An additional factor here is that mediation before the Conciliation Board will rarely have taken place.

In the opinion of the Law Reform Committee, there is no real evidence to support a contention that judicial mediation is not appropriate in cases where one of the parties is a public body, provided that the parties have dispositive rights over the subject matter of the dispute.

However, some cases raise issues that are important beyond the scope of the case itself, e.g. cases concerning the interpretation of law. In such cases, one or both of the parties may have a particular interest in resolving the dispute by judgement and, if so, the courts should not instigate mediation meetings, at least not against the will of either of the parties.

The Law Reform Committee found that there was no reason to enact a rule that judicial mediation should be restricted to certain kinds of cases, subject to a general requirement that the parties have dispositive rights over the subject matter of the dispute.

An important principle in the Law Reform Committee’s proposals as a whole is that the court, or more specifically the judge assigned to prepare the case, shall play an active role in directing and administering the proceedings. Active administration of the proceedings implies, amongst other things, that the judge must keep the issue of judicial mediation in mind. He or she must assess whether, in view of the nature and facts of the case, judicial mediation ought to take place. This assessment may be difficult to make in individual cases, but it is hoped that with time the courts and the individual judges will gain the experience necessary to exercise their discretion more confidently.

8.2 Which Courts and Which Instances?

Based on the experience so far from the courts that have participated in the pilot scheme, the Law Reform Committee proposes that a judicial mediation scheme shall apply to both the courts of first instance and the courts of appeal. The question of mediation in the court of appeal will of course rarely arise if the parties have been through mediation at first instance. However, there may be occasions when this can be appropriate, e.g. if new information has been submitted that sheds a different light on the claims that have been submitted. As a general rule, however, there will be less room for judicial mediation in the courts of appeal than in the courts of first instances, not least because a larger proportion of the cases that are heard by the appellate courts concern matters of principle beyond the scope of the case in question where the parties will usually be concerned to get a judgement.

The Law Reform Committee did consider whether judicial mediation could be appropriate in proceedings before the Conciliation Board. In principle, there is no reason why judicial mediation should be less effective in the Conciliation Board than in the ordinary courts of first instance, and there might well be advantages in conducting a more intensive mediation process in such cases. However, the Law Reform Committee concluded that the Conciliation Boards should not be given the power to conduct judicial mediation. Proceedings before the Conciliation Boards are - and shall remain - very simple.

8.3 Who Shall Mediate?

Under the pilot scheme, the judicial mediator shall either be one of the judges of the court or an external person with knowledge of judicial mediation and/or the subject matter of the dispute. The Law Reform Committee found that this arrangement should continue.

However, the Law Reform Committee did find that there was no reason to restrict the choice to judges of the court in question. Other persons, both lawyers and persons with different backgrounds, may be suitable as judicial mediators depending on the nature and specific circumstances of the case involved. During the pilot period, mediators have been appointed from outside the judiciary only very exceptionally. There are a number of grounds for this, but the simple fact that such appointments were rare was not in itself a sufficient reason to restrict the choice of mediator in the permanent scheme to members of the judiciary. The Law Reform Committee pointed out in this connection that non-judicial mediators have successfully been used in courts in other jurisdictions. External mediators may be particularly suitable in commercial disputes for instance, where a commercial lawyer or a company manager may be the ideal mediator. The same applies in building cases, where there could be advantages in appointing a building surveyor or similar as mediator.

The competence of the mediator will to a large extent depend on his or her personality and personal skills. However, training in negotiating skills and in the particular role that judicial mediators shall play is also very important. Those appointed or to be appointed as judicial mediators should be skilled in mediation and negotiating, and proper training is crucial.

8.4 Panel of Mediators

Under the pilot scheme, the court is empowered to compile a list of persons outside the court who may be appointed as judicial mediators. As far as we know, none of the courts have done this.

The Law Reform Committee would like to see a greater use of external mediators in the permanent scheme than has been the case under the pilot scheme. The need for external judicial mediators is of course greater in disputes that call for expert knowledge, e.g. technical expertise or accounting expertise. Even in other situations, however, judicial mediation as an institution has much to gain from the courts being given the opportunity to draw on persons with a range of relevant qualifications.

The Law Reform Committee found that in the permanent judicial mediation scheme, each court ought to have a panel of persons who could be appointed as mediators from which the court could chose in individual cases. The panel should comprise persons with knowledge and experience from various disciplines who posses the necessary personal skills, and who are willing to act as judicial mediator in a reasonable number of cases and to undergo the necessary training.

In addition to establishing panels, however, the courts should also be given power to appoint persons outside the panel in individual cases, for instance due to the special nature of the case or because the parties request it.
8.5 Important Rules of Procedure, including the Duty of Confidentiality

The Law Reform Committee found that the rules of procedure adopted in the pilot scheme on the whole were both adequate and appropriate.

The Committee pointed out that the dividing line between ordinary mediation and judicial mediation was not distinct. Since judicial mediation is to be subject to specific rules of procedure, it is important that it is made clear whether the mediation process that is to be followed is ordinary mediation or judicial mediation, not least because of the consequences that the choice will have on the competence of the judge to continue dealing with the case if no settlement is reached. The Law Reform Committee therefore proposes that the judge shall issue a formal order as to whether judicial mediation shall take place or not.

The Law Reform Committee discussed in particular detail and proposes modifications to two procedural rules. One of these concerns the position of judges as judicial mediator and their right to continue to deal with the case if the mediation does not result in a settlement. The other relates to rules on the duty of confidentiality.

Judicial mediation is a thorough form of mediation, through which the mediator will acquire considerable knowledge of the issue in dispute. It is obvious that if a settlement is not reached, the mediator cannot as a general rule continue to prepare the case for trial or pass judgement. However, a separate question is whether the parties can petition the court with a request that a judge who has acted as judicial mediator shall be entitled to pass judgement on the basis of the information that he or she has acquired in the course of the mediation proceedings.

There are good arguments in both directions. The Law Reform Committee was in doubt, but concluded that it should not be available for the parties to petition the court as described. A judge who has been a judicial mediator shall under no circumstances be entitled to continue to deal with the case as judge if the judicial mediation proceedings have failed.

It is important that the mediation proceedings and the information that is submitted during the proceedings are confidential. The parties should not have to be anxious that information that is divulged during the proceedings will be used against them if judicial mediation fails and the case goes to trial. The mediator would also be put in a difficult position if he or she were called to testify at the trial about matters that were disclosed in confidence or about what took place during the mediation proceedings.

There must be one exception to the parties’ duty of confidentiality. It is conceivable that one of the parties adduces evidence during the mediation that has not been adduced in any other way during the proceedings. If the mediation proceedings are not successful, the other party should in that event be entitled to demand that the evidence be adduced. Otherwise it would be possible for a party to “immunise” important evidence by first adducing it during mediation proceedings. A similar exception is normal in other jurisdictions, for instance in the USA.

The Law Reform Committee had originally intended to propose a general duty of confidentiality for all participants concerning what takes place or arises out of the judicial mediation. However, the Committee concluded that a general rule would be too wide, and that a strict rule would probably not be respected either. The parties could not be expected to observe an absolute duty of confidentiality, nor is there a need for an absolute rule.

The proposal of the Law Reform Committee distinguishes between the parties on the one side and the judicial mediator and other persons who were present (for instance an assistant to the mediator or technical expert) on the other.

The parties to the proceedings shall not be permitted to testify later in the case as to what took place or arose out of the judicial mediation, except that the duty of confidentiality shall not preclude them from presenting information relating to specific evidence which was referred to and which has not otherwise been adduced.

The Law Reform Committee proposes that the parties shall not be subject to a duty of confidentiality except in connection with proceedings relating to the dispute after judicial mediation. The parties may have a legitimate need to disclose details of the events that took place during judicial mediation, for instance to the board of directors where the person in question represented a company, or to other persons in the company. However, the proposal is general in its form, and legitimate need is not a condition for the right to disclose the events that took place.

In order to inspire confidence during the judicial mediation, it is important that mediators and persons who may have assisted during the proceedings are bound by a duty of confidentiality regarding the events that took place. The Law Reform Committee has therefore suggested an absolute duty of confidentiality for these persons.

9. Follow-up of the Report
As mentioned, the pilot scheme was expanded in scope and extended in time with effect from 1 January 2003 until 31 December 2005. The fact that the scheme has already been evaluated can only be interpreted to the effect that the Ministry of Justice would like to see the scheme continue. There is every reason to believe that judicial mediation will become a permanent feature of the Norwegian civil legal system when new civil procedure legislation is adopted in a few years’ time.



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