INTRODUCTION
In 2011-12, the Office of the Commissioner for Federal Judicial Affairs (“FJA”) was invited to participate in the Judicial Education for Economic Growth Project in Ukraine (“JEEG”) funded by the Canadian International Development Agency (“CIDA”). The objectives of the project included the strengthening of the capacity of the judges and courts in Ukraine to handle cases more efficiently and effectively. In pursuit of that goal, four courts in Ukraine, two in each of Ivano-Frankivsk and Odessa were chosen as “pilot courts” to work with a delegation of Canadian judges and project leaders.
The pilot courts, with the organization and support of their Chief Justices, included the Ivano-Frankivsk City Court, (Chief Justice Taras (Mikhailovych) Antoniak), the Ivano-Frankivsk Administrative Regional Court, (Chief Justice Petro (Mykolajovych) Cherepij), the Malynovsky District Court, Odessa (Chief Justice Leonid (Hyhorovych) Lichman) and Odessa Administrative Regional Court (Chief Justice Oleg (Vasyliovych) Hlukhanchuk). The Judicial Education Program focused upon the provision of information and education respecting the process known in Canada as judge-led pre-trial settlement conferencing or judicially assisted dispute resolution as that process has been developed and is now in wide use in the Superior Courts of Canada (the “project”).
The project involved a Canadian delegation including Justices Ted Zarzeczny and Donald Bryk of the Court of Queen’s Bench for Saskatchewan and Manitoba, together with the FJA International Project Director, Mr. Oleg Shakov and Senior Project Manager, Ms. Nataliya Horodetsky (the “Canadian Team)”.
THE CANADIAN EXPERIENCE
The Superior Courts in Canada have a wide range of jurisdiction including a responsibility to try all of the most serious criminal, civil and family law (divorce) cases. Increasingly, in the 1960s and 70s, the case load of Canadian Superior Courts grew very rapidly. Delays in getting cases to trial increased and the ability of judges to keep up with caseloads became more challenging. This, combined with a desire to make Canadian courts and judges more accessible to the public, led senior court officials to consider other alternatives that might result in a greater efficiency in the use judges’ and court time while, at the same time, increasing the public’s confidence in the administration of justice and in the judges of the court responsible for it. As well, courts and judges sought to “demystify” court proceedings and to encourage parties to a dispute, and their lawyers, to become more active in attempting to settle their cases.
So it was that in the 1970s, the courts in Canada, led by the Superior Court of Queen’s Bench in Saskatchewan, began to develop the process of judge-led settlement conferencing. This process had originally been developed in California and a number of other states in the United States and it met with very considerable success there. Soon, many of the Superior Courts in other provinces of Canada developed their own approach to judge-led settlement conferencing or judicially assisted dispute resolution (“JADR”) as it is known in some provinces.
JUDGE-LED SETTLEMENT CONFERENCING
Judge-led settlement conferencing is now utilized, on a voluntary or compulsory basis, in all cases coming before the Superior Courts of most Canadian provinces. In Saskatchewan, judge-led pre-trial settlement conferencing of all cases is mandatory. No case can be referred to trial unless the conference has been held. In Manitoba, as an example of an alternative process, the parties and their lawyers must agree to having a judicially assisted dispute resolution conference. This is an example of a voluntary process.
A judge-led pre-trial settlement process includes the following basic procedures. The parties file a request to the court for a judicially assisted dispute resolution hearing (where it is voluntary) or they certify their case is ready for a settlement conference where it is compulsory. Before the conference is held, the parties and their lawyers must file a summary of the facts of the case that they rely upon and, if the parties are represented by lawyers, an outline of the legal issues and law which they say applies. Judges are assigned to lead the pre-trial settlement conference and they must prepare themselves by reviewing the claim, the defense and any other materials on the case file. A date is then assigned and the parties and their lawyers appear in court or a settlement conference room where settlement discussions then occur. The judge’s role includes the development of the settlement options and expressing, in a constructive and careful fashion, opinions on the strengths and weaknesses of each parties’ case. If a settlement is reached, a settlement or “peace” agreement is prepared in writing, the parties and their lawyers sign it and it is filed on the court file
The settlement agreement may include a provision that the court issue any order or judgment which reflects the terms of the settlement. That order or judgment terminates the legal proceeding.
In Canada, where a settlement agreement is reached, a successful appeal of the case is highly unlikely since the parties have consented to the terms of the agreement. The settlement agreement may also include a provision whereby the parties forfeit their right to appeal the settlement agreement.
Pre-trial settlement conferencing or judicially assisted dispute resolution should not be confused with mediation. Although mediation is a process utilized by parties to resolve disputes, the role of the mediator is quite different in that he or she merely facilitates discussion between the parties and normally does not express any opinion as to the strengths or weaknesses of either party’s position. Moreover, the mediator does not impart the same sense of authority and does not have the same legal knowledge and experience that is possessed by a judge. Mediation is usually an interest-based, rather than a rights-based, process. While pre-trial settlement conferencing is often referred to as mediation, there is a clear distinction between the two processes.
While, initially, parties and their lawyers, as well as some judges, resisted this new process and role for judges, the successes achieved over time have led to broad and enthusiastic support for judge-led settlement conferencing and judicially assisted dispute resolution as an alternative method of resolving disputes.
The goals and objectives of judge-led settlement conferencing achieved in Canada can also be achieved by judges in the courts of Ukraine. These include expanding the role of judges from being adjudicators to facilitators of settlement discussions between the parties. Pre-trial settlement conferencing places the parties and the judge in personal contact. This promotes transparency in the court process, enhancement of public confidence in the capability, capacity and independence of judges and personalizes the legal process. Court cases are handled more efficiently and the length of case lists for trial is substantially reduced. For example, in Saskatchewan, where the process is mandatory, 65 to 70 percent of cases are settled at the pre-trial settlement conference. In Manitoba, where the process is voluntary, the settlement percentage is even higher. Appeals are essentially eliminated, thus increasing the efficiency of the appeal courts. Parties are more likely to support their own settlement as opposed to a judgment imposed upon them by a judge after a trial.
The Canadian Team is confident that the successes experienced in Canada over the past 25 or 30 years, and which are now being experienced by the pilot courts in Ukraine, will be shared with other judges and courts throughout Ukraine.
The Ukraine Experience
Being aware of the significant differences between the Canadian and Ukrainian judicial systems as they relate to the civil law, the Canadian team deemed it necessary to become familiar with the Ukrainian system of civil codified law. As well, it was necessary to understand the jurisdictions and levels of the various Ukrainian courts in order to better understand how and where the process of pre-trial settlement conferencing or judicially assisted dispute resolution might be implemented.
The first visit to Ukraine in May of 2012 involved meetings with the various courts and their judiciary, as well as with officials from the High Council of Justice, the High Qualification Commission of Judges of Ukraine (HQC) and the National Judges School of Ukraine. Thereafter, Justice Bryk travelled to Ivano-Frankivsk to meet with Chief Judge Antoniak of the City Model Court and with Chief Justice Cherepij of the Administrative Regional Court and their colleagues. Justice Zarzeczny travelled to Odessa to meet with Chief Justice Lichman of the Malynovsky District Court and with Chief Justice Hlukhanchuk of the Odessa Administrative Regional Court and their colleagues. The purpose of the visits was to familiarize those courts with the concept of pre-trial settlement/judicially assisted dispute resolution conferencing.
From the outset, all four courts quickly grasped and embraced the concepts, and while realizing that the Canadian model might not fit into the Ukrainian judicial structure, a variety of adaptations were raised for further discussion.
The logical next step in the process was to invite a delegation of Ukrainian judges from both the Ivano-Frankivsk and Odessa courts to Canada to witness first-hand a mock pre-trial settlement conference presentation in Regina, Saskatchewan, and a mock judicially assisted dispute resolution presentation in Winnipeg, Manitoba. The presentations were videotaped with Ukrainian translation and these were later demonstrated to Ukrainian judges in the pilot courts during the second visit.
The second visit to Ukraine in March 2013 involved further presentations by Justices Zarzeczny and Bryk, followed by meetings and discussions with both the Ukrainian judiciary as well as with representative groups of Ukrainian lawyers and the public at large.
The pilot courts in both Ivano-Frankivsk and in Odessa presented their own mock demonstrations of pre-trial settlement/judicially assisted dispute resolution conferencing, from which it was abundantly clear that their adaptations worked extremely well within the framework of the Ukrainian Civil Code.
From that experience, a consensus was reached that the four courts would proceed with the implementation of pre-trial settlement/judicially assisted dispute resolution conferencing encouraged and supported by the HQC.
The third visit of the Canadian team to Ukraine in October 2013 involved further meetings with the representatives of the four pilot courts to receive an update on the implementation of the process and to discuss topics such as challenges which they were facing, administrative hurdles which needed to be overcome, and acceptance by the stakeholders, including the lawyers and the public at large. By this time, all four courts had experienced pre-trial settlement/judicially assisted dispute resolution conferencing and reported a positive reception to the process, as well as successful completion of many disputes resulting in a settlement or “peace” agreement being reached by the parties.
The experience of the pilot courts in utilizing pre-trial settlement/judicially assisted dispute resolution conferencing confirms that the process is one which will benefit both the courts as well as the public at large. While further modifications, and perhaps even amendments to the Civil Code, may be necessary, the initial results justify a continuation and expansion of this process. The ultimate benefits of a reduction in the number of cases that go to trial, transparency of the process, and the ability of litigants to resolve issues with the assistance of a judge short of going to trial will all result in an increased confidence in the Ukrainian justice system.
The members of the Canadian Delegation wish to acknowledge, with thanks, the support given this project by the Chief Justices of the pilot courts and their judicial colleagues. The encouragement and support given by Mr. Ihor (Leonovych) Samsin, Head of the HQC, Mr. Anatoly (Mykolaevich) Martzynkevich, Secretary of the HQC and Ms. Polina (Vitalijivna) Kazakevych, Head of International Cooperation Division of the HQC, have all played a valuable role in achieving the success of this project. Similarly, Mr. Andrij (Vasyliovych) Gnatenko, Consultant to JADR-JEEG, has been instrumental in promoting this project. We thank them for the warm and wonderful hospitality shown to us on each of our visits.
Justices Zarzeczny and Bryk and the entire Canadian delegation appreciate having been given this opportunity to strengthen the already strong bond that exists between the Canadian and Ukrainian judiciary and our two countries.