Dr. Karni Perlman is an adjunct lecturer at Bar-Illan University and the College of Management Law School in Israel. The following is an abstract of Dr. Perlman's Ph.D Thesis as submitted in December of 2009.
This research deals with the current role of judges in the judiciaries of Israel and the United States. It presents, for the first time in a focused and systematic manner, the changes and permutations that have occurred in the content of the judging function. These changes are principally embodied in two new functions that are customary in the system, The Settlement judge and the Therapeutic judge.
These two judicial functions are practiced in the court system in parallel with the continuation of the judge's role as administering the classic judging procedure, which is defined as formal, adversarial, and rational and which includes managing a multi-stage process of fact clarification and the presentation of arguments in a process ending in a judicial decision in the form of a written, well-reasoned verdict.
The research sets forth the practical developments that are used in the court system in light of new theoretical-practical schools of jurisprudence that developed in the United States toward the end of the 20th century. It argues for the dynamic and shaping of the judicial function in response to the needs of the legal system and the development of these philosophies, which offered practical methods for the cooperative, quality, and efficient administration of dispute settlement as an alternative to classic judicial procedure.
The different stages and manifestations of the settlement judging function are presented, beginning with its essential management function, which is executed in the framework of the pre-trial procedure and assists in advancing the handling of the dispute. It then moves to the special judging procedure -- the "Settlement Conference" -- which is intended to attain a solution that is agreed on by the parties and is characterized by a judging process involving clarifying needs and interests and striving to crystallize a fitting solution that is mutually beneficially to the parties. It ends with the development of an overall .settlement culture. practiced in the legal system. This culture favors making settlements between parties over handing down a judicial decision on their case (on both the civil and the criminal level) and sees in this manner of conducting proceedings a more efficient and quality way of managing and settling disputes in court.
The settlement function and the conception that is assimilated in it are presented as responses to the Alternative Dispute Resolution (ADR) movement that has developed and been manifested in a practical manner in the United States since the 1980s. The ADR movement espouses the presentation of a variety of dispute-management and settlement processes and possibilities, in addition to the classic judging procedure. Although this movement did not intend to bring about a change in the judging function, but rather to develop alternatives to the classic procedure, the development of alternatives, with mediation as a central procedure, led to updating the content of the judging function. The judiciary adopted ideas and methods that are applicable to conducting dispute management and settlement in a cooperative manner, deal with a clarification of the needs and interests of the litigants, and seek to attain an agreed, mutually beneficial solution, one that fits the particular circumstances of the dispute and the needs of the parties to it.
The therapeutic judging function is presented as a function still in stages of expansion and development. It commences with the formation of a unique judging function that is executed in the framework of special courts in the system, known as "Problem-Solving" courts or "Therapeutic Courts." The continuation of its development starts with the creation of a "therapeutic culture" that is concerned with the concept of proper, empathetic, and respectful judging conduct, which is recommended for implementation in the entire court system in both civil and criminal procedures. This concept accords with the recommendation of the working paper published by the American Judges Association in 2008 that deals with proper judicial conduct in the framework of a new interpretation of the term "Procedural Fairness."
The therapeutic function is described against the background of the Therapeutic Jurisprudence movement, which gain notice in the United States in the last decade of the 20th century. This movement focused on the concept of law as a social power having influence over the emotional aspect and the psychological welfare of the individual. The movement seeks the attainment of positive therapeutic results in applying judgment at the level of the individual and at the system performance level, and it supports making practical changes in administering legal procedures and in the content of the role of lawyers and judges.
The present thesis argues that the new roles ,the settlement and the therapeutic role, may be connected and seen as embodying a new conceptual trend in law, a new judging paradigm. One may point to the transition from the concept of the classic judging function to a relational orientation that is concerned judicially with interpersonal relations, interpersonal communication, and focusing on problem-solving.
Accordingly a change occurred in the content and nature of judging. A transition took place from administering a judicial procedure having adversarial, formalistic characteristics that focused on examining obligations and rights included at the layer of the written arguments to administering a judicial procedure with joint, non-formalistic characteristics that focused on a deeper layer of the dispute and on a discourse of interests and needs. The judicial decision, presented in a written, detailed verdict that is based on applying universal principles to the circumstances of the case, diminishes in relation to the judicial striving for arriving at a settlement based on the agreement of the parties and seeking a fitting response to the dispute at the level of the individual that is suitable to the specific needs of the parties.
This trend creates a variety of judicial function content. The study presents a mapping of the variety of legitimate acts that reflect a broad and, at times, contradictory range of the proper function concept. Among the assortment of involvements and legitimate judicial conduct in both the U.S. and Israeli court systems, a number of judicial roles are found today that are distinct from one another at the formal level characterizing them, at the adversarial level of the procedure carried out with their application, at the emphasis they choose to deal with.on a plain that moves between a dialogue of rights and the application of universal legal rules to the case in hand to a discourse concerned with the needs (including emotions) and interests of the specific litigants and the formulation of a unique solution appropriate to the particular matter.
The study deals in its initial chapters with an analysis of the design of each of the new judicial roles the settlement role and the therapeutic role, through examining its theoretical context and describing its essence. In this framework, there is a discussion of skills and qualifications required to undertake each judicial role and to
A separate and detailed chapter treats the new judicial roles and their manifestations in the Israeli court system. The roles are examined in the light of the conceptual contexts presented in this research in regard to American courts. Thus, it is argued that the settlement judging function is widespread in Israeli law, which may be understood in light of the comprehensive assimilation of the principles of the ADR movement in law and in the Israeli court system. Characteristics of the therapeutic approach may be identified in the framework of special courts. The therapeutic role is still in its initial development stages in light of the limited recognition of Therapeutic Jurisprudence in law and in legal-public discourse.
The thesis details conceptual, structural, and performance changes that have taken place in Israeli law in recent decades, basing itself on an analysis of verdicts, the professional literature, judges. lectures, and decisions by the State Comptroller.
The thesis innovates in offering a systematic mapping of the range of the judicial function in the United States and Israel. This is done at length through flow charts that elucidate the argument and by presenting a comprehensive discussion of the relevant issues. Among other things, the work relates the development of new functions toward the end of the 20th century to conceptual criticism of the judging procedure and the judicial role that had been raised in the framework of the school of legal realism in the early part of the century. Similarly the research offers insights in regard to the issue of internal connections and relations between the two new judicial roles, the concept of justice embodied in fulfilling the new roles, and their maintenance in other countries with customary legal systems, where one may point to the development or assimilation of the ADR movement and the therapeutic jurisprudence movement.
The argument for erecting a new judging paradigm that is concerned with changing the judging orientation from that of rules to a relational orientation focusing on problem-solving serves as a basis for analyzing the fears raised in regard to fulfilling the new judging functions and their existence in the legal system. Thus, the phenomenon of a decrease in the number of verdicts that are handed down in the system, or .The Vanishing Trial" phenomenon, and its socio-legal implications will be discussed. Also to be examined is the fear of conceding the proper conducting of .due process. and the issue of the appropriate practical solution for the principle of legal neutrality. The inharmoniousness between rules of ethics based on an orientation of rules and the new ethic executed in the frame of the new functions with an orientation of relationships, and what stems from this dissonance, will be surveyed.
The study contributes to the development of legal research and presents several innovations: