Trend Report | Part 1 - HiiL

The Changing Role of Courts
The court hearing is now the focal point of civil procedures, with high expectations from all
participants. Litigants want voice and procedural justice. The hearing is an opportunity for settlement.
But it is also a venue for informing the judge about what happened and for debate about the legal
merits. The Dutch council for the judiciary funded a number of projects in which 250 hearings have
been monitored. Did the parties receive procedural justice, sufficient information and interpersonal
justice (respect)? Who talked during the hearing for how long? How did the participants
communicate? What, according to each participant, frustrates a good hearing? What are tools to
make it go smoothly? Judges also experimented with different ways to manage the hearing.
Cooperation or a battlefield?
Respondents expect respect, voice, neutrality and a judge who listens to them and shows being
involved. They are reasonably satisfied with the procedural justice they get. During the hearing, 32%
of the cases are settled. Sometimes, participants feel pressed to do so. The results strongly suggest
that this type of civil litigation is not seen as a battlefield. Even from their opponents, participants
expect a positive attitude, respect, willingness to settle and submitting evidence in time. They see
unnecessary accusations and qualifications as disturbances.
Obstacles
Disrespectful (non-) verbal communication was most frequently mentioned as disturbing behaviour.
On average, each disturbance is associated with a 12 minutes longer hearing. Judges tend to react to
disturbances by structuring the debate, rather than active listening or asking questions. Judges are
often dissatisfied with the documents submitted to them. They tend to be irritated if a high number of
ancillary issues and (weak) legal points are being brought up. Timing issues are another source of
dissatisfaction.
Suggestions for improvement
The project results strongly suggest that hearings will be experienced as more fair and more effective
if courts make clear what participants can expect. Guidelines or Q and A forms may help parties and
lawyers to submit the most useful information in an organized way. Process descriptions or a video
may work to give an impression of what will happen during the hearing. The practices for facilitating
fair settlements can be improved as well.
J. van der Linden & M. Barendrecht, Zitten, luisteren en schikken: Rechtvaardigheid en doelbereik bij de
comparitie na antwoord, Research Memoranda, nr. 5-2008, Raad voor de rechtspraak, november 2008.
M. Barendrecht, S. van Gulijk, M. Gramatikov, P. Sluijter, De goede procesorde in beeld, Research
Memoranda, nummer 1-2011, Raad voor de rechtspraak, juli 2011
On the other hand, there is the view that courts are providers of an authoritative interpretation of the
law. If you go to a court, you may not get justice, but a better understanding of what the law says for
your particular case. Appeals systems focusing on legal review and the culture of legal scholarship may
support this perspective. In this view, judges are not trained in social work, economics or skills of dispute
resolution. They should leave that to others. If judges work primarily for the law, their loyalty will not be
so much towards clients, but to the legal system that is exemplified by appeals, supreme courts and
legal treatises. Deciding cases rapidly is less of a priority (the law can wait a few more weeks) and
whether the decision actually provides a workable outcome is not their responsibility. For the clients,
these courts act as a kind of helpdesk where you can learn about the application of the law in your
particular case.
HiiL Trend Report – Part 1: Challenges and Promising Approaches 71