In 2016-2017 the ENCJ studies the issue of Alternative Dispute Resolution and the Judicial Domain. The idea for the Project resulted from the fact that there are a number of ongoing changes to the ways in which civil, family and even some administrative disputes and criminal cases are being resolved across the EU. The increasing caseload of traditional courts, rising costs of litigation, time delays, desire for confidentiality and the desire of parties to have greater control over the selection of the individual or individuals who will decide their dispute, contributed to the fact that many countries have started to consider alternative dispute resolution techniques (ADR). All of these developments call into question how the European dispute resolution scene is changing, and whether the changes are desirable. Moreover, they raise the issue whether the basic article 6 ECHR (right of the citizen to a fair trial) in such cases is respected.
The Project Team focused on the relationship and mutual interaction between court proceedings and ADR proceedings, conducted in the context of judicial proceedings in civil law cases. The work of the Project Team was not easy since the dimensions of the ADR (in the context of judicial proceedings) are still relatively unknown to the judiciaries in EU, although different ADR techniques are present in all participating countries.
The report on ADR and the Judicial Domain contains minimum standards and recommendations. The preparatory work includes a questionnaire on ADR and the replies of the participating countries.
The minimum standards that were identified as necessary for Court related ADR in civil proceedings are:
1. The basic procedural safeguards in Court related ADR in civil proceedings should provide,
- the right to an equal position/equality of arms;
- that the solution reached within the ADR proceeding is truly the reflection of real and true will of the participants;
- protection from disclosure of data revealed in ADR in further judicial proceeding;
- the principle of confidentiality.
2. In order to support the above mentioned procedural safeguards:
- Only those with training accredited by an appropriate professional body should be allowed to lead an ADR procedure.
- Appropriate training should be available to all judges to recognise the advantages and risks together with the potential need for ADR procedure.
3. A judge who has led an ADR procedure should not play the role of judge in the following trial, unless in accordance with the domestic law, both parties express the wish to continue to proceed with the same judge and the judge considers the circumstances of the case are such that it would be appropriate for him/her to do so, taking in to account the need for objective independence and impartiality.
4. Parties should be adequately informed with regard to the rules and procedures of ADR.
5. Following the completion of an ADR procedure the settlement may, if approved by a Court, be formally enforced.
6. Parties should have the opportunity once the ADR is finalised, of reopening the case, but only in exceptional circumstances defined by domestic law.