President Herzog has made sensible and necessary proposals for reaching consensus on judicial reform in Israel. Several of his proposals call for a middle ground in between the Levin proposals and their critics. (I made similar suggestions in an earlier blog post here, on January 15). Politicians may start with very different objectives on these points – e.g how much they trust elected officials versus judges, but achieving a sound and stable consensus is possible if there is good faith and a spirit of compromise.
In this piece, let me focus on the elements of the President’s proposals on which even the basic starting points should be embraced by all. The legal system in Israel needs reform so it can work more swiftly and efficiently. The courts are overburdened. Litigation can be an intolerable torment to those involved in terms of delay, financial expense, and emotional costs.
Canadians have been making efforts to streamline our system and promote access to justice for all. There is still a long way to go in streamlining our system, but we have made some progress. Here are some the ideas being tested here.
First, legislation can be redrafted to be more specific about what the law actually requires. Numerical formulas can be useful. For example, in the area of family law, Canadian legislators are increasingly incorporating formulas that tell you, based on various factual inputs (e.g., what is your income) on how property should be divided or how much each party has to make in support payments. In the United States, many places are relying on sentencing guidelines.
Second, legislation might encourage “restorative justice” rather than retribution, without outcomes like shaming and penalties. Laws and policies can be written so that the exercise is instead one of problem-solving. The idea is to devise an outcome in which the parties can go forward with some dignity and serenity, while perhaps even maintaining a positive relationship, rather than continuing their legal combat and detesting each other more and more. In some situations, an administrative official can decide that one party has made a reasonable offer to settle the dispute, and the other party then can either accept the offer or go home. No more litigation.
Third, laws can be written in a plain and simple language so that anyone can understand them and how they apply to most situations. Easy-to-use resources, such as websites, can be provided to help ordinary people understand what the law is and how it applies in most situations.
Fourth, many issues can be removed from the courts altogether and placed in the hands of administrative tribunals or arbitrators.
Fifth, while courts can review administrative decisions, the “standard of review” in Canada is increasingly “deferential.” A Court will not upset an administrative decision merely because the Court might have arrived at a different decision. Litigants can usually stop at the first level of decision because they are not going to get a full “do-over” at a higher level, and the outcome is probably not going to change.
Sixth, appellate courts are similarly taking a more “hands off” approach to trial courts. An appeal is generally not a repeat of the initial hearing.
Seventh, the jurisdiction of the Supreme Court of Canada has been refined so that it has more control over which cases it hears. Few matters can automatically be appealed to the Supreme Court of Canada, our highest tribunal. Most cases are heard at its discretion. Intermediate appellate courts decide most matters on appeal, and there the matters end.
Eighth, more legal proceedings can be conducted through distance technologies such as phone and internet. In some jurisdictions, particular matters like claims for a small monetary amount can be dealt with, from beginning to end in most cases, entirely online.
Ninth, lawyers can be excluded from certain matters, such as small monetary claims or landlord tenant disputes below a certain monetary threshold. This idea is already in limited use in Israel.
Tenth, in some areas mediation might be required before a matter goes to court. It is not desirable to trap the parties in a protracted series of mediation conferences. However, sometimes it may be worthwhile is worth first requiring at least one mediation session.
Eleventh, in matters where the stakes are fairly small, a “small claims court” can be tasked with dealing with the matter. Israel has such courts, but perhaps the ceiling might be raised on the monetary value of disputes they can address.
Twelfth, courts can be given more discretion, on a case-by-case basis, to adopt expedited procedures in matters of intermediate importance.
The reforms suggested here cannot all be accomplished in one piece of legislation or initiative. But there could be a consensus in the Knesset on a law that provides the following:
• stating the overall objective of having a legal system in Isarel in which the laws are clear and well-explained and in which any disputes are resolved swiftly, fairly, efficiently and as constructively as possible;
• identifying a list of techniques that can be used to promote that overall objective;
• requiring that the Knesset consider the overall objective and the various techniques be considered whenever a law is passed
• establishing a standing committee – of the Knesset, or a mix of MKs, judges, lawyers and lay persons – that will regularly review the operation of the legal system, gather and present data on how many disputes are arising and how long it takes and how much it costs to resolve them. The committee also could recommend specific targets for improvement -e.g., reducing the typical number of new cases arising each year by X% or the time it takes to resolve an average dispute once filed by Y% by such-and-such a date.
Why not use the current crises as a spur to enduring and practical reforms that can be embraced by all? The rancor of the current controversy over “judicial reform” is hurting Israel’s solidarity internally and its image abroad. It is detracting focus from the addressing the real menaces Israel faces from its external adversaries. The judicial reform debate can and should be resolved in a reasoned and civil manner. That could include adopting a package of reforms that make the Israeli legal system itself more just, efficient and concerned with reconciliation, rather than exacerbating and protracting conflict.