This article examines the role of the criminal judge in light of the vanishing trial phenomenon and the emergent reality of many doors to process legal conflicts in both the civil and criminal domains. It focuses on judicial conflict resolution (JCR), which is any activity conducted by judges in order to promote consensual disposition of legal cases, in “Plea Bargains Facilitating Days” (moqed) in Tel-Aviv Magistrate’s Court. We conducted quantitative and qualitative analyses of data collected from observations of 717 hearings in 704 criminal cases and found that, on average, 5.55 (SD = 3.62) hearings were required for disposing of a case, and the average duration of a legal proceeding from indictment to closure was 548.55 (SD = 323.17) days. In most of the hearings the judges’ role was confined to managerial-bureaucratic decisions intended to enable the negotiation between the parties. JCR activities occurred in only 16.9 percent of the hearings, and we identified six types of JCR practices in the promotion of plea bargains: narrow and broad facilitation of negotiations between the parties, forecasting the legal outcome, negatively presenting the judicial process, using lawyer-client relations to promote agreement, and using Alternative Dispute Resolution (ADR) techniques. These findings are compared to previous findings on the roles of judges in civil pretrial proceedings, and the more active role of the civil judge in promoting settlements is discussed. We further discuss the possibility of expanding a therapeutic and rehabilitative approach in the framework of criminal JCR during preliminary hearing days, which become today the main door of criminal justice.
Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution
Ph.D. Candidate, Judicial Conflict Resolution Clinic Director, Faculty of Law, Bar-Ilan University.
This research was supported by the European Research Commission (ERC) Consolidator Grant 647943/14, “Judicial Conflict Resolution (JCR): Examining Hybrids of Non-Adversarial Justice” (2016–2020). Translations not otherwise credited are done by the authors.
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Sari Luz Kanner, Dana Rosen, Yosef Zohar, Michal Alberstein; Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution. New Criminal Law Review 1 November 2019; 22 (4): 494–541. doi: https://doi.org/10.1525/nclr.2019.22.4.494
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