Egyptian Civil Justice Modernization: A Functional and Systematic Approach
by Hiram E. Chodosh, Stephen A. Mayo, Fathi Naguib, and Ali El Sadek
Michigan Journal of International Law, 1996

*866 Introduction

The expansion and liberalization of national and transnational commerce have placed increasing pressure on national court systems to modernize their legal processes. This growth in commercial activity has resulted in ever greater numbers of increasingly complex civil and commercial disputes. Yet, nations attempting to maintain or create market?based economies have focused legal modernization efforts on substantive, rather than procedural, reform. Thus, most countries have been slow to adopt effective and feasible procedural mechanisms designed to administer civil justice for this larger and more complex caseload.

*867 Recent reports from countries as diverse as the People's Republic of China, [FN1] Mexico, [FN2] the Russian Federation, [FN3] and the United Kingdom [FN4] sound a common plea for civil process modernization. [FN5] Critical commentators have noted the importance of procedural reform [FN6] and its *868 integral relationship [FN7] to substantive legal reform efforts. [FN8] Failure to keep pace with increases in the number and complexity of civil disputes limits the effectiveness of substantive legal reform. Accordingly, many nations have begun to realize that they must modernize their civil dispute resolution processes in order to deliver justice [FN9] in the implementation of their economic liberalization programs. [FN10]

Despite the importance of civil process modernization, new proposals are frequently ineffective or slow to develop for four primary reasons. First, as noted above, reform efforts generally focus on substantive legal reform; process modernization is then considered of secondary importance. Second, process modernization proposals tend to emphasize procedural reform without sufficient attention to the necessary and concomitant adjustments of institutional and professional development. *869 Alternatively, they anticipate systemic changes which require large investments of unavailable resources. For example, common recommendations for an increase in judges to meet new systemic demands are seldom implemented because of lacking funds. Third, the opportunity to draw on comparative legal experience is often lost due to superficial and static comparative legal analysis. Based on parochial presumptions of non?comparability, countries commonly ignore the potentially valuable lessons to be learned from a functional and systemic comparison with both successful and failing measures adopted in other countries and, accordingly, rely exclusively on isolated domestic thinking. Alternatively, some countries recognize the value of drawing on foreign models, but pursue their adoption without sufficient attention to the distinctive functional and systemic features of the local legal culture. Finally, whether proposals are procedural or systemic, whether based on domestic, foreign, or new models, in many countries the government has had exclusive responsibility for the evaluation of reform. The absence of a significant role for non?governmental experts inhibits the potentially dynamic process of a creative dialogue aimed at the effective design of functional and systemic reforms.

To provide helpful assistance to other nations currently in pursuit of civil process reform, this Article introduces a model of civil justice modernization developed through a functional and systemic approach. Addressing the common weaknesses of many other reform efforts, this approach is first motivated by the conviction that process modernization is a necessary component of effective substantive legal reform. Second, in its critical assessment of the problems and its creative recommendations for reform, this Article integrates the design of procedural, institutional, and professional development measures, without requiring large investments of unavailable financial resources. Third, the Article presents a long?term and rigorous collaborative study that drew on a comparison of Egyptian and U.S. law, as well as other foreign legal experience. The study candidly assesses the major causes of backlog and delay in Egypt and creatively designs a set of cost?effective recommendations for immediate implementation. Finally, the dialogue that produced final recommendations benefited from the expertise and informed judgment of both public and private sector experts. [FN11]

*870 The recommendations presented in this Article involve two civil process modernization measures soon to be adopted in Egypt: [FN12] (1) Case Management, a judicial streamlining function designed to reduce delay by separating managerial from adjudicatory functions; and (2) Judicial Mediation, a consensual dispute resolution mechanism, designed to offer parties alternatives to adjudication, created to reduce backlog by encouraging consensual settlements of civil cases.

This Article is organized according to a problem/solution sequence. Section I illuminates the international breadth of the backlog and delay problem and the generally available reform approaches. Section II then introduces the functional and systemic comparative approach that spawned the design of the Egyptian reforms. Section III describes in detail the application of this approach in Egypt. Specifically, Part A provides a history of the study; Part B assesses the primary causes of backlog and delay addressed by the reforms; and Part C discusses in detail the functional and systemic design of the recommendations. In conclusion, this Article reflects on the broader significance of these potentially adaptable solutions to one of the most critical and widespread problems currently hindering the effective administration of civil justice.

*871 I. Backlog and Delay in General

A. The Backlog and Delay Problem

Though difficult to measure and evaluate, [FN13] backlog and delay [FN14] are among the most critical legal problems [FN15] reported around the world, from countries as diverse as Chile, [FN16] Switzerland, [FN17] Cambodia, [FN18] Italy, [FN19] the United Kingdom, [FN20] India, [FN21] Japan, [FN22] and the United *872 States. [FN23] In many countries, an excessive number of legal disputes languish unresolved in the courts.

Procedural causes of backlog and delay include (i) free access to the courts without disincentives sufficient to prevent frivolous litigation processes (including initiation without cause, extension without excuse, motions without merit, etc.); [FN24] (ii) discontinuity, repetition, and fragmentation of the legal process, without efficient court administration or case management techniques; and (iii) limited opportunity or incentive for consensual settlements early in the legal process. [FN25] Systemic causes derive generally from insufficient investments in human and institutional resources to perform efficient procedural functions.

B. General Solutions to Backlog and Delay

General solutions to the problems of backlog and delay are easy to articulate. [FN26] Many countries have incorporated the right to speedy legal determinations into their procedural and constitutional law. [FN27] However, efforts to turn this principle into practice quickly encounter both ideological opposition [FN28] and practical obstacles. [FN29] Aside from the common *873 but unrealized plea for more judges, [FN30] national court systems tend to pursue three general, process?oriented strategies: litigation prevention, procedural streamlining and case management measures, and alternative dispute resolution. [FN31] Critics warn that these measures deny access, exacerbate party resource disparities, and commodify justice. [FN32]

If one assumes a perfectly functioning legal system, then such objections to the various reform strategies may be persuasive. However, when compared to the stark realities of the actual operation of many *874 legal systems, the same objections must be raised in greater force against tolerance of the backlog and delay problem. If left unattended, the backlog and delay problem discourages meritorious litigation, provides defendants with undue advantages, and forces plaintiffs to bear alleged losses or seek alternative measures of retribution. [FN33] Access is only valuable if it includes the prospect of a timely legal determination of the issues at hand. Defendants generally benefit from backlog and delay, forcing plaintiffs to suffer alleged losses and incur litigation costs for several years. Thus, the failure to achieve timely remedies increases the cost of doing business. To the extent settlement is pursued, knowledge of the defendant's economic advantage, enhanced by delay, reduces both the interrelated value of and incentive for civil claim settlement. Attention to these realities motivates serious consideration of alternative solutions that otherwise might appear unjustified.

1. Litigation Prevention

The first approach to reducing backlog and delay is to prevent disputes from being litigated. Litigation prevention measures include reducing the competence of the courts to adjudicate smaller claims, disincentives such as higher user fees [FN34] or cost? and fee?shifting, [FN35] and sanctions against frivolous litigation and motion practice. [FN36] However, litigation prevention measures are often undesirable due to their perceived limits on both access to the courts and the full realization of procedural rights. [FN37] Therefore, they have been approached with caution and, where implemented, have been modest.

2. Procedural Streamlining and Case Management

The second general approach to reducing backlog and delay is *875 implementation of procedural streamlining and case management [FN38] measures. Some countries approach this statutorily [FN39] through the establishment of rigorous deadlines for answering complaints, filing evidence, and rendering decisions, [FN40] or by shortening the process itself. [FN41] Many others have allocated resources to court administration, [FN42] transformed in?court processes into out?of?court processes, [FN43] or increased judicial intervention in processes primarily controlled by the parties, regardless of whether party control is by procedural design or operational default. Judicial intervention or case management functions in the United States [FN44] are *876 frequently referred to as "managerial judging," [FN45] departing from a traditionally passive to a more active judicial role in controlling the preparation phases of litigation. Case management frequently coordinates utilization of alternative dispute resolution mechanisms, as well. [FN46]

Critics fear that managerial judging sacrifices impartiality. [FN47] Some argue further that case management has made pre?trial procedures more complex while failing to control abuse. [FN48] However, supporters argue that managerial judging employs resources in a more sensible and effective way. [FN49] Many studies of the effects of case management reforms have demonstrated reductions in delay. [FN50] But critical doubts linger from an ambiguous historical record and recognition of a complex combination of *877 variables that affect court congestion levels. [FN51] Notwithstanding arguably mixed results in the United States, foreign judicial functions comparable to U.S. case management measures have been promoted by other experts as particularly advantageous. [FN52]

3. Alternative Dispute Resolution [FN53]

The third general approach to reducing backlog and delay [FN54] is to require or encourage alternative means of dispute resolution. [FN55] Alternative dispute resolution mechanisms include those that are employed only with the consent of the parties, but render binding decisions (e.g., arbitration), and others that proceed by court order (or agreement), but do not require the parties to reach a resolution of the dispute (e.g., non*878 ?binding arbitration, [FN56] mediation, [FN57] early neutral evaluation, and judicial settlement). [FN58] In the first category, the parties consent to enter the process, but do not necessarily agree to a binding result. In the second, the parties agree or are required to enter the process, but do not necessarily reach a final resolution of the dispute.

Critics of alternative dispute resolution generally oppose the notion of "privatizing" justice. [FN59] However, some of the specific problems cited by the critics, such as party resource disparities, [FN60] are at least as prevalent in normal litigation processes, especially in the context of serious backlog and delay. [FN61] So?called "adversarial" legal processes, in which the parties and their legal representatives bear the burdens of gathering evidence and developing legal argumentation, tend to exacerbate resource disparities [FN62] more than processes in which a neutral judge or panel is responsible for these functions. The less expensive the process, the less resource disparities risk prejudice in the outcome. Finally, disputing parties may at times turn to other forms of private resolution or retribution when backlog and delay significantly reduce the effectiveness of litigation.

4. Reform Versus the Status Quo

Whereas managerial judging and alternative dispute resolution have developed relatively quickly in the United States, [FN63] they have been slow *879 to develop in many other national court systems for a variety of structural and ideological reasons. For example, one assessment concluded that case management strategies have not been pursued in India partly because of a judicial rotation system and control by advocates over the pretrial process. [FN64] Similarly, one commentator has explained that Italy has not pursued obligatory alternative dispute resolution processes based on the constitutional value of access [FN65] and prohibitions against the creation of non?judicial bodies entrusted with dispute resolution capability. [FN66] However strong the opposition to such reform, commentators should acknowledge that the failure to address the problems of backlog and delay in many court systems tends itself to deny access, exacerbate resource disparities, and divert cases to private forms of resolution. [FN67] A protracted litigation process of several years provides a strong disincentive to using the courts, thus denying access. The ability of defendants to delay the litigation process with impunity strengthens their comparative economic strength in litigation. Finally, if the courts are not a feasible option for a timely judgment, parties either ignore their disputes or resolve them by other private strategies. Thus, the concerns raised in opposition to reform are equally, if not more, applicable to deliberate or inattentive preservation of the status quo. [FN68]

II. A Functional and Systemic Approach to Backlog and Delay

The commonality of the backlog and delay problem, its causes, and the general approaches taken by nations to reach solutions all suggest a *880 topic ripe for comparison. [FN69] But how should nations conduct such comparisons, and which methods will lead to fruitful results instead of wasted resources and sustained frustrations?

Comparative legal scholars frequently cheer "the comparative method" without sufficient explanation of what such a method or set of methods [FN70] specifically should entail. [FN71] Some have posited explanations for the inability to explicate a comparative methodology; failure to do so has been viewed ironically either as a strength [FN72] or as a result of the *881 discipline's youth (just short of one century old!). [FN73] Others raise the issue in the context of the uses, misuses, and non?uses of comparative legal studies, without exploring the relationship between the purpose served by the comparison and its methodology. [FN74]

The legal experts charged with the task of solving the problem of backlog and delay in Egypt found no comfort in the absence of an explicit comparative methodology. Skeptical and vexing questions had to be addressed. What, after all, does U.S. legal experience have to offer the Egyptian legal process? Which comparative method could possibly bridge the gap between these two distinctive legal cultures? Which approach distinguishes this cross?national effort from the failures of "law and development" programs in the 1960s [FN75] or dilemmas confronted in more recent, U.S.?sponsored "rule of law" programs? [FN76]

*882 A. Qualifying the Civil/Common Law Distinction

Skeptical reactions to the comparative enterprise described in this Article are likely to stress the differences [FN77] between the British "common law" and French "civil law" traditions from which the contemporary U.S. and Egyptian [FN78] legal processes have evolved. [FN79]

Differentiating between legal systems based upon traditional classifications is common, but also of limited value. [FN80] Reflective scholars acknowledge that classifications of systems into groups or "families" do "not correspond to a biological reality," but rather serve merely as a "didactic device." [FN81] Because legal systems arguably have so many features that may be considered to be shared or not shared by other systems, and because classification schemes tend to place systems into exclusive (not overlapping) categories, most classifications of legal systems have been forced to focus on single?feature theories to justify the classification. [FN82]

*883 Because the distinction between the common and civil law traditions has been traditionally cast in dichotomous terms, many scholars have searched for the single differentiating feature that can explain all others. These scholars have placed exclusive focus on features such as recognized legal sources [FN83] (judicial precedent versus legislative code), [FN84] forms of legal process (adversarial versus inquisitorial), [FN85] ideal structures of institutional authority (coordinate versus hierarchical), [FN86] or more general sociological or historical notions framed in terms of culture or tradition. [FN87] Even those who explicitly object to single feature theories ironically fall into the trap of employing them. [FN88] Concentration on these *884 features raises important sets of distinctions; however, these distinctions require substantial qualification. [FN89] After four years of collaborative comparative study, U.S. and Egyptian legal experts no longer view these classifications as posing any real obstacle to solving the backlog and delay problem.

One of the most frequently applied distinctions between civil and common law processes is the distinction between inquisitorial and adversarial legal processes. [FN90] The process in civil law systems is characterized as inquisitorial, i.e., the judge, rather than the parties, is responsible for investigating factual claims and developing approaches to apply the law to such claims over the course of many discontinuous proceedings. [FN91] *885 The process in the common law system is characterized as adversarial, i.e., the parties, rather than the judge, are responsible for factual investigation and the development of legal argumentation.

This traditional distinction may be qualified by noting common functions in processes classified as adversarial and inquisitorial and by observing modern trends of international convergence. First, the adversarial/inquisitorial distinction should not overlook the distinction between fact? and law?finding processes. In Germany, for example, law?finding is an adversarial process. [FN92] In France, the principle of contradictoire provides another example of adversarial processes in a civil law system. The French principle requires that each evidentiary submission be freely debated at the hearing, and the judge cannot incorporate in the decision any matter that has not gone through the contradictoire process. [FN93] Systems classified as inquisitorial incorporate many adversarial processes, such as the process of initiating factual claims through party allegations made in petitions or complaints and defending allegations through party responses or answers, themselves supplemented by the parties' compilation of documentary evidence.

In addition to recognizing the adversarial features of processes in civil law systems, it is also increasingly important to recognize international convergence in procedural trends. [FN94] The growth of case management in the United States, the specialization and restoration of the managerial function in many other countries, [FN95] and the expansion and *886 reinvigoration of consensual dispute settlement mechanisms, such as mediation and conciliation, provide evidence of broad convergence. [FN96] Recognition of these trends, rather than primary concern with classification, encourages open?minded discussions of comparability aimed at finding new procedural solutions based on international experience with widespread problems. [FN97]

B. A Functional and Systemic Approach

With these qualifications in mind, [FN98] the approach taken in this Article casts the actual functions and systemic features of legal processes onto a universal model, in which differences can be seen in relative relation to one another and in terms of the broader context in which they operate. This model may be stated in the simplest terms: when disputes arise, they may be resolved by the parties themselves or their legal representatives or, when necessary, by resort to the services of a neutral third party, whether a judge, a lay assessor, a governmental official, or a private expert (or some combination of the foregoing). [FN99] *887 Legal processes differ in the ways that responsibility is allocated to (i) the parties and/or their legal representatives, and (ii) if directed or allowed to intervene, neutral third parties, at different temporal stages in the legal process (e.g., initial accusation/response, fact?versus law?finding, dispute resolution, appeal). These functional choices of allocated responsibility presume and thus necessitate certain systemic levels of institutional and professional development.

This approach applies equally to traditional and alternative dispute resolution processes. For example, the U.S. and Egyptian evidence?taking procedures differ significantly. Whereas the U.S. discovery processes are the primary responsibility of the parties, and evidence gathering occurs out of court, in Egypt, as in many countries, judges are responsible for taking and requesting evidence in court. Dispute resolution processes also differ in the type of intervention, whether evaluation of the claims and defenses or facilitation of settlement, whether based exclusively on legal positions or on broader extra?legal interests of the parties. Thus, fair and accurate comparisons are facilitated by examining which actors are responsible for performing which functions over time.

From this perspective, the U.S. processes identified for comparative study and later creatively adapted to the Egyptian process provide excellent examples of recently shifting allocations of responsibility over different aspects of the legal process. They also highlight traditional allocations of responsibility that have encountered practical problems in the U.S. and Egyptian processes.

C. Application of this Approach to the U.S.?Egypt Comparison

Traditionally, the U.S. judge did not become involved in a civil dispute until shortly before the trial. [FN100] Following the plaintiff's complaint and the defendant's answer, unless dispositive motions (e.g., lacking jurisdiction) were made, the parties pursued discovery of evidence from one another and thus controlled the progress (or postponement) of the preparation of the case, as well as the progress (or deferral) *888 of settlement negotiation. As these features became identified with the backlog and delay problem, many U.S. jurisdictions [FN101] adopted two of the three general approaches to backlog and delay: case management and alternative dispute resolution. These reforms were designed to provide, respectively, judicial intervention in processes previously controlled by the parties and greater opportunity for consensual settlement.

In contrast to the U.S. traditional model, traditional Egyptian civil process allocated primary responsibility to the judge or judicial panel for all aspects of evidentiary and doctrinal development of a civil claim. After the parties filed their initial claims and responses (itself an adversarial process), the judicial panel took over. Beyond the proffered evidence, only the judicial panel was empowered to request evidence, find the applicable law, and adjudicate the dispute. Unlike the U.S. system, which traditionally limited judicial involvement in managing the case and then adapted by allowing judicial intervention, the Egyptian system traditionally provided the judge with supreme preparatory powers.

However, with an increase in the number and complexity of civil disputes brought before the courts, judges in the Egyptian system found it difficult to exercise their authority in a timely manner. Discontinuity, measured by a reported average of ten to fifteen appearances per case for the handling of evidentiary matters, [FN102] including frequent extensions for the fragmented presentation of evidence and witnesses, gradually became a system in which the judge could not promptly handle his preparatory duties. The inability to conduct an expeditious preparation of the case for judgment in effect left the progress of the litigation process to the parties themselves. Defendants and their lawyers were thus effectively empowered to use the chronic features of delay to tactical advantage. Furthermore, without the imminence of judicial decision, incentives to settle cases prior to judgment were minimal.

Based on the comparability of the problems associated with party?controlled processes, the Egyptian reforms were inspired by the U.S. approach. To the extent possible, the reforms also draw on pre?existing *889 features of the Egyptian process. First, the procedural streamlining function of Case Management seeks to restore judicial control over case preparation through the specialization of that function in a separate office of Case Managers. Second, the alternative dispute resolution mechanism of Judicial Mediation draws on both U.S. models of early neutral evaluation and mediation and expands contemporary Egyptian consensual dispute resolution processes used less formally in rural areas and more formally in Egyptian family and labor disputes.

Therefore, the strong Egyptian traditions of both (1) judicial (rather than party) authority and control over the litigation process, and (2) consensual dispute resolution (e.g., conciliation, mediation and arbitration) [FN103] in non?commercial disputes provide an excellent foundation for the development of the Case Management function and Judicial Mediation mechanism, respectively. These measures are expected to cut delay through the imposition of judicial discipline on the preparation of the cases and to reduce backlog through greater numbers of consensual settlement.

Not only are these reforms based on a functional comparison; they also address systemic impediments to procedural reform. The reforms take into account institutional factors that directly affect the effectiveness of any procedural reform, namely the development of institutions and professional personnel to perform procedural functions and implement new mechanisms. In this regard, the recommendations draw on pre?existing professional roles and expertise. Primary court administrators, themselves judges, currently working under the Chief Judge will become Case Managers, and retired judges will become Judicial Mediators. To the extent new functions are to be performed by new actors, the reforms also necessarily call for Case Management and Judicial Mediation training. In this way, attention to functions in their systemic context proved fruitful in the design of the reforms.

Finally, this approach is motivated by the recognition of a shared challenge facing many modern legal systems: the development of commerce both domestically and transnationally and the concomitant modernization of legal systems to resolve disputes resulting from such commerce. The U.S. processes studied by the Egyptian legal opinion leaders are very popular among business people both in the United States and abroad, who have been frustrated with problems of court congestion and limitations on remedies available through legal adjudication. [FN104] *890 Therefore, these reforms are anticipated to improve the administration of justice and intended to attract the admiration and resulting investment of the domestic and international communities. For these reasons, the functional and systemic approach to comparative legal scholarship taken in this Article is tailored to the present needs of the Arab Republic of Egypt and the society it represents.

III. The Specific Case of Egypt

Legal experts and scholars frequently assess the problems in civil litigation processes and the substantial obstacles to feasible reform. They are more rarely requested to suggest ways to assist national court systems in forming solutions that are inspired by foreign models yet well?adapted to the pre? existing local legal system??including its processes, institutions, and professional personnel. This Article provides a model for civil process modernization that incorporates case management and mediation in Egypt, a country that shares many of the functional and systemic features (e.g., a strong commitment to access, a discontinuous in?court evidence?taking process, a judicial rotation system, etc.) that have been cited as impeding reform efforts in other countries. [FN105] This Section will provide a history of the process modernization effort, a tailored assessment of the primary causes of backlog and delay in the Egyptian courts, and a discussion of the resulting functional and systemic recommendations approved by the Egyptian Ministry of Justice [FN106] to solve the backlog and delay problem.

*891 A. History of the Comparative Process Modernization Effort

The development of specific reform measures to address the backlog and delay problem was facilitated by, first, a comparative understanding of the chosen processes utilized to solve court congestion problems in the United States and, second, a functional and systemic adaptation of these U.S. mechanisms and techniques to pre?existing Egyptian institutions, processes, and human resources. Even though the reforms were initially inspired by a functional comparison with U.S. models, they have been carefully and systematically designed by Egyptian legal opinion leaders to be adaptable to the Egyptian legal process over the course of many practical phases. The practical design of the comparative enterprise itself is a major achievement.

The process of comparative study and problem?solving required nearly four years [FN107] of unprecedented international collaboration between the Egyptian Ministry of Justice and the U.S.?based Institute for the Study and Development of Legal Systems (ISDLS). [FN108] The study employed a wide range of practical research methods (including authoritative papers, lectures, demonstrations, public and private commentary, study groups, eight jointly written reports, seminars, conferences, and workshops). Many of these tools were utilized by the Ministry of Justice in its own deliberations, including the solicitation by the Ministry of commentary on the reforms from the private sector. The establishment of Egyptian and U.S. study groups helped to develop sufficient trust and candor in the assessment, clear responsibility for work product, and institutional expertise in the comparative analysis.

The initial study grew out of demonstrations of U.S. civil and criminal legal processes (open to the public), held in Egypt in 1992. Based on the success of this initial study, in November, 1992, the Minister of Justice, Farouk Seif El Nasr, invited ISDLS and the U.S. Information Service (USIS) to conduct an assessment of backlog and delay in the Egyptian courts and to develop in collaboration with the Ministry recommendations to address the backlog and delay problem. Egyptian commentary, gathered during extensive interviews in February, 1993, formed the preliminary basis for an accurate assessment of the backlog and delay problem.

*892 At the completion of the initial assessment, in April, 1993, ISDLS proposed that the Ministry conduct an in?depth study of a wide variety of U.S. judicial streamlining and modern alternative dispute resolution mechanisms that were designed to solve backlog and delay problems in the U.S. system. [FN109] During the summer of 1993, ISDLS prepared for the Ministry a list of six U.S. mechanisms for further comparative study (case management, judicial settlement, mediation, early neutral evaluation, arbitration, and summary judgment). At the urging of ISDLS, the Ministry also established an Egyptian Legal Study Group ("Study Group"), consisting of both senior and junior members. In November, 1993, ISDLS presented these six mechanisms in a series of seminars in Cairo and Alexandria. Through authoritative papers, lectures, and demonstrations (all related to a single case file), ISDLS presented the program to over one hundred Egyptian experts. Egyptian commentary (both in public and private sessions) reflected receptivity to some, but not all of these mechanisms. After an extensive internal study, the Ministry selected the first four of these processes for further intensive examination in the United States by a delegation of Study Group members. [FN110]

Over the course of one month in September, 1994, the Study Group delegation observed dozens of these four types of civil justice processes in the United States in their practical operation. They met with judges, attorneys, and parties to discuss and evaluate the mechanisms, and later reflected upon their reactions in daily debriefing sessions, which formed the basis for a final report. [FN111] This phase fine?tuned both the assessment and the direction of the Egyptian reform efforts.

Based on the delegation's final report, completed in October of 1994, the Ministry approved the Study Group's recommendations for reform. In the summer of 1995, the Ministry decided to present the recommendations to Egyptian legal opinion leaders at a conference in order to receive critical commentary from both governmental and non?governmental legal experts. In the autumn of 1995, in preparation of the conference, the Ministry (in conjunction with ISDLS) wrote a case file in *893 order to simulate the reform process [FN112] and developed demonstrations of the Egyptian case management and mediation processes. These processes were then demonstrated by the Study Group during the Civil Justice Modernization Conference held in Cairo, Egypt, in January, 1996. [FN113]

Culminating the previous phases, the Conference was remarkable in four critical respects. First, it involved a large and diverse body of experts both within and outside the legal system, such as judges, prominent commercial lawyers, law professors, business people, and governmental officials. Second, the consideration of the reforms incorporated public floor?commentary from this diverse group of participants. Third, the commentary considered the reforms on their own merits in the Egyptian context, rather than as an adaptation of U.S. models. Fourth, the Conference used innovative techniques not only to involve all participants, but also to reach consensus on the critical decisions. During the Conference, following each demonstration of the reforms, smaller groups of attendees gave commentary in an interactive workshop run by a facilitator and recorded by a reporter who also served as a member of the Study Group. [FN114] Finally, after the workshops, the reporters shared the *894 commentary, on which the Ministry based its final resolutions. [FN115] The Ministry considered three proposals, accepted two, and rejected the third based on the commentary it received during the Conference. At the conclusion of the Conference, the Minister of Justice announced both the recommendations and plans for the preparation of legislation.

National and international leaders within the United States and many foreign countries, as well as international funding agencies and organizations, should consider the benefits of these practical methods. First, this approach facilitated candor in the assessment of current problems in the administration of justice. Second, demonstrations, responsive critical commentary, and interactive seminars were conducive to developing creativity in the reform? design process. Third, the reforms were designed with a strong sense of realism; they will be implemented gradually through pilot projects for a limited number of courts covering a specifically delineated category of cases, and efficient training programs have been developed to precede implementation. [FN116] A final benefit of this approach is its replicability in other institutional efforts to broaden the reform approach (e.g., the plan to develop a private mediation capability). [FN117] Therefore, the significance of this undertaking extends well beyond the achievements represented by the comparative methodology or the reform recommendations themselves. Without the practical effectiveness of the foregoing cross?national exchange, the functional and systemic approach could not have been successfully pursued.

*895 B. The Problem: Assessing the Causes of Backlog and Delay [FN118]

In order to explore the most practicable means to prevent, streamline, and resolve (consensually prior to judgment) a greater number of litigations in Egypt, Egyptian and U.S. legal opinion leaders endeavored to understand the interrelated functional and systemic causes of the problem. Some of the causes thus identified were either beyond the control of the Ministry (such as the growth of the Egyptian population and its urbanization) [FN119] or beyond the scope of procedural reform (such as implementation of the privatization policies or improvements in legal education). [FN120] Furthermore, not all causes required change; some, such as the principle of impartiality, reflected positive, central tenets of the Egyptian concept of civil justice. But many other causes were within reach of new measures, and the study focused its primary attention on those features. Accordingly, this Section concentrates on those problems that could be effectively addressed by the reforms: critical functions of the civil justice process and the systemic allocations of responsibility to different institutional and non?institutional actors to perform such functions. [FN121]

In particular, the reforms address three related causes of backlog and delay: judicial responsibility for non?adjudicative processes; judicial impartiality and distrust of private settlement; and the judicial rotation system. As will be demonstrated in Part C, specialization and institutionalization of the case management function and the option of mediation performed by judges are responses to address these three major causes.

1. Judicial Responsibility for Non?Adjudicative Processes

In theory, Egyptian judges [FN122] are presumed to exercise control over the entire litigation process. This includes not only adjudication, but also *896 the preparation of cases for decision, including evidence?gathering and ministerial functions such as the scheduling of appearances. However, given the mounting caseloads and an insufficient allocation of resources in response, Egyptian judges are not able in a timely manner to exercise in practice the power allocated to them in theory. Judges are reluctant to impose upon the advocates the requirement of more timely submissions of evidence and legal argument. Because of the large caseload, they perceive themselves to lack the necessary time to review the submissions. [FN123] This is a significant factor contributing to backlog and delay in the courts. [FN124]

The Egyptian legal process, unlike that in the United States, does not employ an out?of?court private discovery system. Instead, the judge or judicial panel is responsible for handling evidentiary matters in a series of discontinuous sessions, in contrast to the U.S. out?of?court, party?controlled discovery process, newly disciplined by one or two case management conferences. The preparation of evidence in Egyptian civil process thus requires a greater use of judicial time. Moreover, the Egyptian system lacks any institutional counterpart to the model of a U.S. magistrate judge or discovery referee, the British master, or the French juge de mise en etat, [FN125] who performs necessary managerial functions. Therefore, the judicial decisionmaker must perform all administrative functions in addition to his or her adjudicative role. Many legal experts estimate that an average first instance civil litigation in Egypt requires ten to fifteen appearances for evidentiary issues alone. A piece of evidence is accepted, an extension granted, an expert appointed, an argument heard, more evidence requested, a deadline set and extended again??this is the picture of the daily judicial process painted by legal opinion leaders in Egypt. [FN126] Approximately only fifteen to twenty percent of the cases heard by a first instance court in a given day are prepared with sufficient evidence and legal argument for the judge to issue a decision. [FN127] Given the heavy caseload and the institutional pressures to address some (even extremely limited) aspect, of one to two hundred *897 cases in each court session, judges increasingly have strong institutional incentives to postpone not only a substantive consideration of critical issues but also deadlines for more insignificant matters. Indeed, many judges perceive the enforcement of deadlines to be futile, because even if deadlines could be enforced, the judges would not have time to respond adequately to cases ready for adjudication. Ironically, however, the less significant matters appear to be a more critical cause of backlog and delay. The preparation phase requires an estimated two years, whereas the adjudication phase requires an average of two months. [FN128]

Approximately seventy?five percent of in?court time before the judge or judicial panel is dedicated to routine and ministerial functions in the preparation stages of the case, such as recording the acceptance of various forms of submitted evidence and the hearing of witnesses. Notaries, who are charged with some of these tasks, whose fees are higher than court costs, but who do not have exclusive jurisdiction over some matters, are often circumvented by parties who ask the court for an official imprimatur on an important document, e.g., a real estate contract. Thus, judges become responsible for many ministerial tasks. Burdening the judiciary in the foregoing ways with matters more suitable for the exclusive attention of judicial administrators and clerks strains valuable judicial resources and decreases the time afforded to substantive judicial decisionmaking, [FN129] thus increasing backlog and delay. [FN130]

2. Judicial Impartiality and Distrust of Private Settlement

Another reason given for the failure to engage in a form of case management (or other techniques that would tend to reduce backlog and delay) derives from the judicial tradition of stoic impartiality. [FN131] In theory, any decision by the judge reached prior to a final verdict, even if of a procedural nature, would be viewed as prejudicial to the parties. [FN132] *898 Within the traditional Egyptian legal culture, judges and lawyers do not enjoy any social or professional interaction. This helps the judiciary to maintain the appropriate appearance of impartiality, but it also discourages judge?lawyer communication and inhibits judicial efforts to manage the preparation of cases for judgment and attempts to seek conciliation between the parties on preliminary matters. [FN133]

This traditional distancing of the judge from the litigants is also seen as a major obstacle to judicial encouragement of settlement (in the form of a settlement conference) and to the dismissal of nonmeritorious legal claims where there is no dispute of a material fact (i.e., summary judgment). [FN134] In this latter instance, resolving some issues and not others is perceived as "mutilating" a case. In other words, separating the claims would lead potentially to having some claims still in trial while others are in appellate stages of review, even though interlocutory appeals are allowed in isolated instances, such as for recusal requests. For similar reasons, dismissal standards for lack of evidence appear to be high. In other words, judges are reluctant to rule on particular claims before the full evidentiary life of the entire case is developed. [FN135]

Given the practical inability of judges to fulfill their duties expeditiously, lawyers are able to prolong the litigation process by utilizing the procedural tools at their disposal, thereby earning additional fees with each substantial procedural turn of the case. The practical inability of the judiciary to keep track of these procedural developments adds considerably to backlog and delay. Moreover, procedural rights that ensure fairness are subject to excessive use by attorneys and those litigants (usually defendants) who are interested in delaying the adjudication of a dispute as long as possible. Two prominent examples were frequently cited by legal opinion leaders. [FN136]

First, extensions??routinely granted by judges who wish to ensure the parties have sufficient time to gather evidence??add significantly to backlog and delay. Most judges are reluctant to impose waivers and *899 sanctions on the parties for their lawyers' failure to meet deadlines and have the limited sanction power [FN137] against attorneys of a maximum fine of twenty Egyptian pounds (the equivalent of approximately U.S. $6.70). [FN138]

Second, requests that a judge recuse himself based on bias or conflict of interest are often made to protract the litigation. Even where the appearance of a conflict of interest is highly questionable, judges often grant the recusal requests in order to achieve an appearance of impartiality. This reflects the strong value placed on maintaining not only impartiality but also its appearance. However, the reluctance to deny summarily many of these requests, which denials are subject to appellate review, adds to the backlog and delay problem. [FN139]

Additionally, the central role (in theory) of the judge (and hence the state) in the litigation process and the pride of the judiciary in its own integrity and expertise serve to discourage the diversion of cases outside the judicial system to forms of alternative dispute resolution, particularly those forms which would require the services of a lawyer. But again, there are notable exceptions to this distrust of alternative dispute resolution. Mediation is obligatory in labor and family disputes and, along with arbitration, is the primary method of dispute resolution in rural areas. The reluctance to expand obligatory mediation to other areas of the law and to develop urban mediation programs built on long?standing rural traditions is an additional obstacle to backlog and delay reduction efforts. [FN140]

3. Judicial Rotation System

In Egypt, judges (i) rotate in three? to five?year periods to different *900 regions of the country [FN141] and (ii) within each region sit on different panels, or shift between the judiciary and the prosecutors' branch, according to assignments made by the Ministry of Justice. The system of rotating judges through different courts, based on the rationale again of maintaining a distance between the judiciary on the one hand and the private bar and greater society on the other hand, compounds the problem. This rotation system forces a judicial panel to pass its caseload directly on to the next panel. This eliminates institutional memory and continuity in the management of a caseload. New panels must freshly prepare for cases already familiar to preceding panels. This duplicates the use of judicial time, and counteracts promotion incentives aimed at the expeditious resolution of cases. [FN142] Given the discontinuity of the process and the judicial rotation system, many cases require the attention of at least one additional judge who will need time to bring his preparation up to the level of the previous judge. This contributes significantly to backlog and delay. [FN143]

C. The Solutions: The Features of Egyptian Process Modernization

The functional and systemic approach (described above in Section III), pursued through the practical methods (described in Part A of Section IV), generated two general recommendations designed to address the problems described in Part B. The two recommendations, denominated as Case Management and Judicial Mediation, [FN144] are *901 described below in terms of their functional and systemic designs. The explication of the functional design focuses on new civil justice procedures, and the description of the systemic design covers institutional innovations as well as measures to train new professional actors. Finally, this Part sets forth the primary justifications for these reforms, based on the manner in which they address the causes of backlog and delay and their expected impact on the problem.

1. The Functional Design: Procedural Reform

First, drawing on the U.S. model of case management, [FN145] Egyptian Case Management was designed to meet the specific needs of the Egyptian civil justice process. [FN146] The Case Manager is not vested with any *902 power to issue findings on the merits of the case; however, the Case Manager has the power to (i) dismiss complaints that do not satisfy pleading requirements; (ii) provide the parties with a pre?established calendar for evidentiary and legal submissions; (iii) meet with the parties to ensure that the evidence and legal authorities are submitted within the established deadlines; (iv) recommend to the judicial panel sanctions for non?compliance, including dismissal, default judgment, claim, issue and evidentiary preclusion, and civil penalties; (v) order the parties to confer on whether they wish to pursue Judicial Mediation with a retired judge or normal litigation according to the case management schedule established by the Case Manager; (vi) implement the parties' choice of the Judicial Mediation option; and (vii) streamline the issues of outstanding dispute between them and schedule dispositive hearings before the judicial panel. The Case Manager has the power to bind the parties subsequently to any agreement they happen to reach. If the parties elect to pursue Judicial Mediation, the Judicial Mediator may be apprised of, and thus benefit from, the decisions reached in the Case Management process. Through these measures, Case Management specializes administrative expertise in the effective and timely preparation of cases for decisions on the merits.

Second, drawing on U.S. models of judicial settlement, early neutral evaluation, [FN147] and mediation, [FN148] Judicial Mediation is well?adapted to the *903 Egyptian system. The Judicial Mediation process will be confidential. It will be conducted by a retired judge (the "Judicial Mediator"), who will act as the "neutral." Judicial Mediation will be offered as an alternative to litigation shortly after the case is filed; the choice to pursue Judicial Mediation will be voluntary and consensual. [FN149] Judicial Mediation will be attended by disputing parties and their legal representatives and conducted by the Judicial Mediator, who will be trained and certified as a trained facilitator of conflict resolution. Judicial Mediation will begin with statements from each party of the asserted claims and/or defenses, and proceed with private meetings between the Judicial Mediator and each party. Judicial Mediation will explore: the relative strengths and weaknesses of each legal claim and defense; settlement proposals that more accurately reflect the probabilities of success on the merits; the impact of these issues on the present economic value of the claim; and business solutions beyond the scope of judicial relief and not exclusively [FN150] based on the legal merits. At each stage, the Judicial Mediator will try to narrow the disagreements between the parties and to encourage final agreement on settlement. If settlement is achieved, the Judicial Mediator will assist the parties in drafting a settlement agreement to *904 memorialize their agreement. Furthermore, Judicial Mediation will not require written preparation other than the gathering of evidentiary support for claims and/or defenses asserted by the parties; however, Judicial Mediation sessions will begin with oral presentations by the parties or their legal representatives. The Judicial Mediator may provide his evaluation to both parties jointly or to each separately, depending on the circumstances. [FN151] Because Judicial Mediation separates confidential settlement negotiations from public adjudicatory functions and draws on a retired judge's experience in evaluating the worth of a civil claim, it is expected to encourage the settlement of civil claims.

These two procedural reforms, though independent, [FN152] are integrated to support one another. First, Case Management incorporates mediation by requiring the parties to confer early in the case to determine jointly whether to pursue Judicial Mediation. By requiring the parties to prepare their cases shortly after a case is filed, requiring them to confer, and identifying the dispositive issues for adjudication by the judicial panel, Case Management is likely to lead to a greater number of consensual settlements. Second, Judicial Mediation reinforces Case Management by requiring thorough and early case preparation by the parties and concluding with an attempt to narrow the issues for judicial decisionmaking. [FN153] Case Managers and Judicial Mediators will coordinate their distinct functions to achieve the maximum level of efficiency in the litigation process. Case Managers will select Judicial Mediators carefully based on the relationship between the subject matter of the litigation and *905 the expertise of the retired judge. Judicial Mediators will ensure preparation by the parties of their claims and defenses, and will assist in narrowing the dispositive issues that need to be resolved. [FN154]

In order to demonstrate the functional operation of these processes over time, the following chronology describes the new procedures in a step?by?step summary. Each set of steps is divided into four categories: (i) filing; (ii) the first meeting with the Case Manager; (iii) Judicial Mediation, if elected, and (iv) the second meeting with the Case Manager.

(i) Filing

Step One: The Complaint is filed with the clerk of the court, [FN155] in accordance with Article 63. [FN156]

Step Two: The Complaint is sent internally to the Case Managers' Office, [FN157] where it is filed, docketed, [FN158] copied, and distributed to the defendant parties.

Step Three: The Case Manager makes an initial determination of whether the Complaint meets the requirements of Article 63.

Step Four (optional): If the Complaint does not meet the requirements of Article 63, it is sent back to the plaintiff with a standardized form listing the requirements and a standardized notification that the requirements have not been fully met. In order to save administrative time, the clerk may merely send the forms rather than noting which of the requirements has not been met. Alternatively, the standardized notification may *906 have a list of requirements with corresponding empty boxes to be checked for each particular requirement that has not been satisfied.

Step Five: As soon as the clerk files and dockets the Complaint and assigns a Case Manager, the clerk sends to the parties a standardized notification of (i) the date of the first meeting with, and the identity of, the Case Manager, not to exceed thirty days from the date of service of the Complaint on the defendant by the court, [FN159] (ii) a standardized schedule of procedural events, including the responsibilities of the parties at each stage, including in particular the obligation to appear at the first meeting and also to gather evidence in support of the parties' claims (including damages) or defenses in preparation of that first meeting, [FN160] and (iii) a list of penalties that may be recommended by the Case Manager for imposition by the judicial panel.

These steps are designed to make filing and service procedures more effective and to inform the parties of their procedural rights and obligations as the case proceeds. This first stage should provide a foundation for a more effective docketing and administrative system of case tracking, which will be important in the future for longitudinal studies of the relative success of the reform measures. Institutionally, court administration personnel currently responsible for docketing and service procedures will come under the direct authority of the Case Managers' Office, thus creating greater accountability in case management in the earliest stage of a civil litigation.

(ii) The First Meeting with the Case Manager

Step One: The Case Manager reads to the parties a prepared statement of his role in the case and the scope of his authority as a Case Manager.

*907 Step Two: The Case Manager provides the parties with a standard form (in simple, layperson's language) that explains the procedural rules relating to the litigation schedule, including subsequent appearances, the conditions to be satisfied for recommendation of Judicial Mediation, the Judicial Mediation schedule (if applicable), the closure of evidentiary submissions, and court hearing dates. The standard form will contain a list of penalties the Case Manager may recommend to the judicial panel for failure to comply (e.g., dismissal or default judgment for failure to appear, foreclosure of a claim or defense for failure to submit evidence or to meet a time limitation, or civil penalties for repeated violations).

Step Three: Case Managers will order the parties to confer ("Order to Confer") in their choice of Judicial Mediation or normal litigation, consistent with the case management schedule. If the parties fail to choose Judicial Mediation within ten days, the litigation will proceed in due course before the judicial panel according to the schedule established by the Case Manager. If the parties elect to engage in Judicial Mediation, the Case Manager will refer the parties to Judicial Mediation, [FN161] and Judicial Mediation will proceed by court order. By means of a standardized questionnaire, Judicial Mediators will certify their opinion that the mediation process should (or should not) continue for limited periods of time beyond the initial authorization. Judicial Mediation will be confidential, and attendance by the parties will be mandatory. Accordingly, the Judicial Mediator and the parties will be required to sign formal, standardized confidentiality agreements, which stipulate penalties for breach of confidentiality.

Step Four: If at least one of the parties fails to elect Judicial Mediation within ten days, the case proceeds under the direction of the Case Manager. If both parties consent to Judicial Mediation, [FN162] the Case Manager then issues a standard order (the "Judicial Mediation Order") assigning a Judicial Mediator, establishing a calendar of a maximum of sixty days for same, and provides a standardized description in simple, layperson's language of the process and obligations of the parties (e.g., attendance, preparation of evidence, and confidentiality). The Judicial *908 Mediation Order authorizes at least one appearance before the Judicial Mediator. Subsequent meetings may be approved only upon certification of the Judicial Mediator that the continuation of mediation will be productive. The Judicial Mediation Order contains an attachment with a standardized list of questions to be asked by the Judicial Mediator to give the parties an opportunity to prepare for said mediation sessions.

This second set of steps serves a number of important purposes. This stage allows the Case Manager to ensure proper service, to require party appearances, and to explain to the parties themselves, rather than just their legal representatives, the procedures of the courts, including the mediation option. The Order to Confer requires the parties to communicate, even if to decide not to pursue mediation, and if the parties elect Judicial Mediation, these procedures incorporate the Judicial Mediation process into the regular litigation schedule. The parties and their lawyers will receive a strong message that a judge is in charge of the administration of the case and that they will be subject to scheduled appearances by the court and sanctions for non?compliance.

(iii) The Judicial Mediation [FN163] (if applicable)

Step One: The Judicial Mediator and the parties (including their legal representatives) sign a standard confidentiality agreement containing explicit reference to resulting sanctions if confidentiality is violated by the neutral or other parties. These sanctions will be applied to the parties in the sole discretion of the judicial panel upon recommendation by the Case Manager. [FN164]

Step Two: The Judicial Mediator reviews a standard questionnaire with each party. The Judicial Mediator records (for his eyes only) verbal answers to the following questions posed to each of the parties:

a. What are the relevant facts of the case?

b. What claims/defenses do you have?

c. How much in damages is the claim worth?

d. What evidence do you have to support your position?

e. Which legal authorities support your position?

Step Three: After the parties have heard from each other, the Judicial Mediator meets with each party privately to discuss the party's *909 settlement position and then decides whether to pursue settlement negotiations in private caucuses with the parties or to provide an early evaluation of the merits and expected outcome of the claims.

Step Four: If settlement discussions are not fruitful, the Judicial Mediator provides neutral evaluation of the case.

Step Five: The Judicial Mediator then meets with each party separately or the parties together (as appropriate) to explore possibilities of settlement.

Step Six: After the first mediation session, the Judicial Mediator certifies to the Case Manager an answer to the following questionnaire by selecting among the following statements:

a. The case has settled; settlement agreement is attached for Primary Court approval.

b. The case is likely to settle in [one or two] additional sessions.

(i) But I need no more time beyond the authorization; or

(ii) Thus, I need an additional thirty days of authorization.

c. The case is unsuitable for continuation of mediation at this time and is hereby sent back to the Primary Court.

Step Seven: Depending on the foregoing questionnaire answers from the Judicial Mediator, the Case Manager issues an order, as appropriate: (i) approving the settlement agreement and dismissing the case; (ii) authorizing an additional thirty days for the purpose of continued mediation; or (iii) recalling the case and the parties to the Case Managers' Office for the Second Meeting (see directly below) within thirty days of the last mediation session.

If elected by the parties, Judicial Mediation offers a significant opportunity for consensual settlements. Even when settlement does not result, the parties will have prepared their claims and defenses, learned more about comparative strengths and weaknesses in their legal positions, and identified the potentially dispositive issues demanding greatest attention.

(iv) The Second Meeting with the Case Manager

Step One: Assuming that either the parties do not elect Judicial Mediation, or that the mediation is not fully successful, the Case Manager meets with parties within thirty days of the first meeting or the most recent order, whichever is later, to ensure that (i) the parties reach agreement about the areas of agreement and/or disagreement, and (ii) the parties have gathered all of the necessary evidence to support their claims or defenses.

*910 Step Two: Whether the case has gone to Judicial Mediation or not, the Case Manager asks the parties the same set of questions posed by the Judicial Mediator:

a. What are the relevant facts of the case?

b. What claims/defenses do you have?

c. How much in damages is the claim worth?

d. What evidence do you have to support your position?

e. Which legal authorities support your position?

However, the answers given in this session are not protected by confidentiality.

Step Three: The Case Manager records in writing the responses in summary fashion. This summary should be the first page of the case file to help prepare the judicial panel for later adjudication, if necessary.

Step Four: The Case Manager then invites the parties to submit any and all evidence in support of their claims and defenses, including evidence on damages. The Case Manager remains prepared to take oral testimony if the party chooses to provide it. After this second session, all submissions of evidence are disallowed, unless strong cause can be shown. Only one extension may be granted at that time; however, the specific length of time rests in the sole, nonreviewable discretion of the Case Manager.

Step Five: All submissions of evidence are then organized in the file for the judicial panel.

Step Six: A hearing date is set (according to the standardized schedule).

This stage finalizes the case preparation function, [FN165] thus liberating the judicial panels from the ministerial tasks of receiving evidence and reducing the significant risks of delay present under the traditional process. In many instances, not only will the judicial panels receive files ready for a final hearing and disposition, but they will also be asked by the Case Manager to address key issues, such as affirmative defenses, that would not otherwise be heard until much later.

2. The Systemic Design: Institutional and Professional Development

The procedural reforms required systemic measures, including the creation of new institutional capabilities, structural checks on new procedural powers, and training for new professional roles. The Ministry *911 identified two potential constituencies to implement the functional reform measures: (i) judges who already perform administrative functions within the court system, and (ii) retired judges who have the experience and respect necessary to conduct evaluations and mediations of civil disputes. Drawing on the Ministry's identification of these groups as likely pre?existing resources for reform, the Ministry decided to pursue two institutional measures: [FN166] the creation of a Case Managers' Office, [FN167] and the certification of retired judges as Judicial Mediators. [FN168]

First, the Ministry will establish a Case Managers' Office. The Case Managers' Office will be led by a senior prosecutor, who will sit at the primary court level. Under him, a staff of judges [FN169] will act as Case Managers at the primary court level and will report directly to the Chief Judge of the Primary Court. [FN170] The staff of Case Managers will be judges of at least four years of experience and will be comprised of the pre?existing group of assistants to the Chief Judge of the Primary Court. Depending on the administrative need, the Chief Judge may appoint additional assistants. [FN171] The Case Managers' Office (at the Primary Court level) will be responsible for all new case management [FN172] proceedings in *912 accordance with new parliamentary legislation and Ministry guidelines. [FN173] Second, the Ministry will establish court?appended Judicial Mediation for all commercial and civil cases. [FN174] Retired judges will be trained, certified, and selected to act as Judicial Mediators. Judicial Mediators will act in accordance with the procedures outlined above.

The procedural powers of the Case Manager are limited by several institutional measures. The reforms require that the Case Manager report to the General Prosecutor and Chief Judge of the Primary Court and that the Case Manager be certified as competently trained by the Judicial Center. Furthermore, legal checks and limits on Case Managerial powers require that (i) Case Managerial procedures must be authorized by law, where required; (ii) Case Managerial procedures and decisions must be constitutional; (iii) the Case Manager may not issue substantive rulings, indicate his views on the merits of the allegations or defenses, take testimony (unless all the parties consent), or resolve factual contradictions; (iv) the Judicial Panel may reject recommendations of the Case Manager; and (v) the Judicial Panel may seek or request evidence not gathered by the Case Manager. [FN175]

No matter how well the reforms are designed, their effectiveness will depend on the competence and integrity of the new actors responsible for their operation. In this respect, training programs must be carefully designed to ensure that newly designated personnel have the requisite simulated experience prior to actual implementation. Further, in order to reduce the costs of training, future U.S. legal assistance must give priority to training the future trainers, so that the training programs are self?perpetuating. Finally, training and implementation must be constantly evaluated as the reforms are gradually implemented, first in a pilot project and then in a wider number of courts. Experience prior to national implementation should provide the basis for future training efforts and modifications to the reforms. Three steps toward the development of effective training programs have been approved by the Ministry *913 of Justice. These steps involve: (i) consultation on the final determination of all case management procedures, including administrative practices, use of forms, session practices, etc.; (ii) seminars to train Egyptian judicial officers in the new processes; and (iii) development of a training course (including lecture, demonstration, and simulated clinical practice). The training programs will aim to train Egyptian trainers in order to phase out foreign assistance.

3. Justifications: Problems Solved and Expected Impact

Case Management and Judicial Mediation also address the most critical causes of court congestion under the pre?reform Egyptian civil process. The Ministry anticipates that the implementation of each reform will significantly reduce backlog and delay in the Egyptian civil courts. [FN176] First, Case Management specializes the responsibility for non?adjudicative processes, thus freeing the judges and judicial panels from unnecessary administrative burdens. [FN177] This will also reduce the use of valuable court time for evidentiary requests, extensions, and other ministerial duties. Under Case Management, the case preparation and evidence?taking process will be shortened, consolidated, and conducted at an early stage, thus reducing discontinuity, fragmentation, and protraction. Second, because the Case Manager will not be responsible for decisions on the merits, judge?lawyer communication [FN178] will be *914 enhanced, and the judicial power to enforce schedules and deadlines will increase. Third, Case Management will be likely to increase the number of consensual settlements by requiring the parties to face the likelihood of adverse decision more quickly. [FN179] Finally, specialization of managerial functions will allow judges to avoid allegations that procedural decisions reflect prejudice in respect of the merits. By institutionalizing the Case Management function, the duplication of preparation caused by the judicial rotation system will also be alleviated.

The Ministry expects that through the availability of Judicial Mediation, caseloads themselves will decrease because a greater number of disputes will be resolved consensually. This will reduce the need for court time before the judicial panels, allowing them to focus on other cases. Second, parties that elect to pursue Judicial Mediation, even if unsuccessful at reaching settlement, will have prepared their claims and defenses sufficiently well to merit a speedier determination by the judicial panel. In some cases, Judicial Mediation may render partial settlement or stipulations of agreement on prior issues of disagreement, thereby significantly shortening the litigation process because the issues to be resolved become fewer. Third, by utilizing retired judges, Judicial Mediation will alleviate concern about the competence and ethics of nonjudicial neutrals. Fourth, by making the decision to mediate voluntary, this reform will not impede access to court adjudication. Finally, Judicial Mediation will also provide preliminary experience with the mediation of complex civil and commercial disputes. Private mediation facilities may then be designed based on that valuable experience.

Conclusion
With the growth of trade and the concomitant liberalization of national economies, the modernization of legal processes to resolve civil and commercial disputes more efficiently has become a pressing need. The effective implementation of substantive law reforms aimed at the maintenance or creation of market?based systems requires civil justice process modernization. This Article provides a model functional and systemic approach, applied with practical methods through a collaborative U.S.?Egyptian effort to meet this challenge. Therefore, the approach, *915 methods, and specific recommendations adopted by Egypt may provide a useful basis for others seeking to modernize their civil justice processes.

*916 Appendix A

Egypt: His Excellency, Farouk Seif El?Nasr, Minister of Justice; Counselor Maher Abdel Wahed, First Assistant to the Minister of Justice; Counselor Dr. Fathi Naguib, Assistant to the Minister of Justice for Legislation; Counselor Ali El Sadek, Assistant to the Minister of Justice for the National Center for Judicial Studies; Counselor Omar I. Hafeez, Justice of the Appellate Court and Chairman of the Egypt Legal Study Group; Hany Hanna Sedra, Prosecutor, Court of Cassation; Nabil Sadek, Prosecutor, Office of the Prosecutor General; Khaled Koraa, Chief Judge, Primary Court; Yehia Khashaba, Legislation Department, Ministry of Justice; Hatem Begatou, Judge, Prosecution Department, Court of Cassation; Sameh El Torgoman, Judge; Counselor Medhat El Maraghi, Chief Justice, Supreme Judicial Council; Counselor Ragaa El Arabi, Prosecutor General, Supreme Judicial Council; Counselor Ibrahim Abdel Hamid Zaghou, Supreme Judicial Council; Counselor Mahmoud Shawky, Supreme Judicial Council; Counselor Emad Eddin Ismail, Supreme Judicial Council; Counselor Mohamed Ezzat Hashish, Supreme Judicial Council; Counselor Hassan Nashaat Hashish, Supreme Judicial Council.

United States of America (U.S. Embassy/USIS officials): Robert Pelletreau, Assistant Secretary of State for Near?East Affairs, former U.S. Ambassador to Egypt; Edward S. Walker, U.S. Ambassador to Egypt; Wesley Egan, Deputy Consul Minister, USIS Egypt; Edmund Hull, Deputy Consul Minister, USIS Egypt; USIS Executive Officers: Robert Morris, JoAnn Quinton Samuels; USIS Political Affairs Officers: Marjorie Ransom, William Cavness, Kenton Keith; USIS Cultural Affairs Officers: Francis Ward, Gilbert Sherman, Janet Wilgus; USIS Deputy Cultural Affairs Officers: Anne O'Leary, Philip Walker, Dana Shell; Foreign Service National Magda Barsoum.

ISDLS: Executive Director Stephen A. Mayo; Chief Justice Malcolm M. Lucas, Supreme Court of California (Ret.); Justice Edward A. Panelli, Supreme Court of California (Ret.); Chief Judge Clifford Wallace, U.S. Court of Appeals, Ninth Circuit (Ret.); Judge Pamela Ann Rymer, U.S. Court of Appeals, Ninth Circuit; Judge A. Wallace Tashima, U.S. Court of Appeals, Ninth Circuit; Chief Judge Wm. Matthew Byrne, U.S. District Court, Los Angeles; Chief Judge Thelton Henderson, U.S. District Court, San Francisco; Judge Lourdes G. Baird, U.S. District Court, Los Angeles; Judge Eugene Lynch, U.S. District Court, San Francisco; Judge Fern M. Smith, U.S. District Court, San Francisco; Magistrate Judge Edward A. *917 Infante, U.S. District Court, San Jose; Judge Richard Byrne, California Superior Court (Ret.), Los Angeles; Judge Winslow Christian, California Superior Court (Ret.), Los Angeles; Attorney Howard A. Allen, San Diego; Attorney Alexander L. Brainerd, San Francisco; Attorney Edward P. Davis, Jr., San Jose; Attorney Robert A. Goodin, San Francisco; Attorney William B. Hake, San Francisco; Attorney John W. Keker, San Francisco; Attorney Michael J. Lightfoot, Los Angeles; U.S. Attorney Nora M. Manella, Los Angeles; Attorney Pamela Phillips, San Francisco; Attorney John J. Quinn, Los Angeles; Attorney Mary E. Reilly, San Francisco; Attorney Mary Jo Shartsis, San Francisco; Attorney Stephen A. Taylor, Alameda; William Vickrey, Administrative Office of the Court, Supreme Court of California; Attorney Douglas R. Young, San Francisco.

Project Reporters: Professor Hiram E. Chodosh, Cleveland, Ohio; Attorney Regan E. Ralph, Washington, D.C.; Project Coordinator Mary Ames West, San Francisco.

FNd. The authors would like to thank many distinguished contributors from the United States Information Service, the U.S. Embassy in Cairo, the U.S. legal delegations, the Egyptian Ministry of Justice, and the Egyptian Legal Study Group (please see Appendix A). Portions of this article are drawn from the authors' contributions to the December 1993 report of the Egyptian Legal Study Group, infra note 12.

FNa. Associate Professor of Law, Director of Comparative Legal Studies at the Frederick K. Cox International Law Center of the Case Western Reserve University School of Law; J.D., Yale Law School, 1990; B.A., Wesleyan University, 1985. Professor Chodosh would also like to thank Professors Harold H. Koh, Ronald J. Coffey, Robert P. Lawry, Sidney I. Picker, Jr., and Peter M. Gerhart for their continued guidance and support, as well as Professors Edward A. Mearns, Jr. and Gregory Shaffer for their helpful comments and encouragement. Professor Chodosh is also thankful for the research assistance of Howard E. Kass, Janaki Sivanesan, Arifa Mirza and James May and the administrative assistance of Becky Hill and Ventrice Cadette.

aa. Executive Director, Institute for the Study and Development of Legal Systems ("ISDLS"), San Francisco, California; J.D. Louisiana State University 1971; B.S. of Elect. Eng., Louisiana State University, 1968. ISDLS is a non? profit corporation established to assist in the study and development of legal systems. ISDLS has worked in twenty?nine countries since 1984 in Latin America, Europe, Asia, North Africa and the Middle East. Currently, ISDLS is engaged in similar projects in the Palestinian Territories, Jordan, and India. Mr. Mayo would also like to express a personal thanks for the invaluable contributions of U.S.I.S. personnel Francis Ward, Janet Wilgus, and Magda Barsoum; Egyptian Counselor Maher Abdel Wahed, who performed the pivotal role within the Egyptian Ministry of Justice; Judge Omar Hafeez, Chairman of the Egyptian Legal Study Group, who directed the Egyptian contribution to the four?year legal study; and Mary Ames West, who acted as the ISDLS Project Coordinator. Additional thanks to the U.S. Agency for International Development for providing primary funding for the project.

FNaaa. Vice?President and Justice of the Court of Cassation, Assistant to the Minister of Justice for Legislation; Doctorat D'Etat in Political Economy, University of Paris, 1972; Diploma of Postgraduate Studies in Political Economy, 1964; Diploma of Postgraduate Studies in Common Law, Faculty of Law, Cairo University, 1959; Bachelor of Law, Faculty of Law, Cairo University, 1958.

FNaaaa. Vice?President and Justice of the Court of Cassation, Assistant to the Minister of Justice for the National Center for Judicial Studies; Bachelor of Law, Faculty of Law, Cairo University, 1960.

FN1. For example, the correlation between economic liberalization in pursuit of a "socialist market economy" and an increase in civil and commercial caseloads is evident in the People's Republic of China. See, e.g., Zhang Huanwen, Excerpts of Address Before the Third Session of the Eighth Provincial People's Congress in Liaoning Ribao, March 7, 1995, at 3, translated and reprinted in Liaoning Provincial Higher People's Court Work Report, BBC Summary of World Broadcasts, June 30, 1995, Part 3 (quoting Zhang Huanwen, President of the Provincial Higher People's Court as noting an 18.6 % increase in the number of cases overall, including a 58.6 % increase in economic criminal cases and an increase of 27 % in economic dispute cases. "[T]he number of economic dispute cases grew, the amount of money involved in cases increased, the legal relations became complicated and the difficulty of trying cases multiplied ...."). See also Bin Xue Sang, China's Civil Procedure Law: A New Guide for Dispute Resolution in China, 26 Int'l Law. 413, 414 (1992) ("The Chinese Government's focus on procedural law, and particularly civil procedure, seems directly attributable to the ongoing process of modern economic reform and its by?product, the so?called 'open door policy,' which has generated numerous civil disputes. As a result, a civil procedure law has become a necessary adjunct to reform.").

FN2. See, e.g., John E. Rogers & Adrian Z. Arriola, Reforming the Lending Policy, Bus. Mex., Jan.?Feb. 1995 (noting that the unique Mexican procedure of amparo "is brought solely as a delay tactic and in the hope that the creditor will give up in frustration over the legal costs and management time involved in the proceeding.... In order to minimize the potential for abuse inherent in the procedural laws, they need to be amended to require the courts to resolve such defenses or proceedings more quickly.").

FN3. Preliminary research in Russia indicates that rising numbers of civil and commercial disputes are expected to clog the courts' dockets and overwhelm the administrative and managerial capacities of the courts, as well as requiring substantial investments in judicial and professional legal training to handle this new caseload.

FN4. Courts Caught in the Time Warp, Times, July 6, 1993, at 35 (noting that 1873 was "the time of the last reforms of civil procedure" and that "the technological revolution has largely bypassed civil litigation," and "costs have escalated, delays have increased, trials have become more complex and they take longer"); The Ups and Downs of the English Legal System, Fin. Times, May 9, 1989, at 22 ("The ever?more?insistent complaints of unnecessary delays and costs, together with the increasing case?loads of the courts, produced by the expansion of business as well as by the economic betterment and increased aspirations of the people, had made such reform unavoidable.").

FN5. Procedural reform measures are under consideration in many European countries, including: the European Union generally, see Approximation of Judiciary Law in the European Union (Marcel Storme ed., 1994); Switzerland, see Claudia Schoch, Verwesentlichung der Bundesgerichtsbarkeit, Bundesrat Koller am schweizerischen Juristentag, Neue Zurcher Zeitung, Oct. 2, 1995, at 13; United Kingdom, see Lord Chancellor's Department??Reform of Civil Procedure Means Cultural Change, Reuter Textline Hermes??UK Government Press Releases, Feb. 10, 1995 (discussing intended reforms of civil procedure) [hereinafter UK Reform]; and Hungary, see Lawyers Recommend Comprehensive Review of the Current Legal System (Hungarian Radio broadcast, Apr. 26, 1992) (discussing nation's intention to reform its civil and criminal procedure).

FN6. Reform objectives may have either a purely domestic or transnational dimension. See, e.g., Alfred W. Cortese, Civil Justice Reform in America: A Question of Parity with Our International Rivals, 13 U. P a. J. Int'l Bus. L. 1 (1992) ("While the calls for reform have focused primarily on the need to reduce costs and delay as a means of improving the delivery of justice, recently some have raised the secondary argument that costs must be contained or reduced in order to vitiate the detrimental effect of the current system on American competitiveness.").

FN7. See, e.g., Hal S. Scott, The Impact of Class Actions on Rule 10b?5, 38 U. Chi. L. Rev. 337 (1970) (challenging the assumption that no change in substantive securities law will result from introduction of the class action procedural device).

FN8. See Ibraham F.I. Shihata, Judicial Reform in Developing Countries and the Role of the World Bank, 1994 World Bank Conference on Judicial Reform in Latin America and the Caribbean 368 (noting the tendency in legal reform efforts to assume that once appropriate changes are made in modernizing the substantive rules, "the legal system as a whole will be more responsive to the demands of modernization and development" and stressing importance of processes and institutions: "Without such processes and institutions, rules may remain abstract concepts which do not always reflect the law in force."). See also Kathryn Hendley, The Spillover Effects of Privatization on Russian Legal Culture, 5 Transnat'l L. & Contemp. Probs. 39, 58 (1995) ("the increased incidence of contracts does not necessarily translate into a reliance upon them in defining the parameters of business relations.... [M]anagers remain skeptical about contractual compliance and feel the need to anticipate the worst case scenario.... The reluctance of managers to resort to the arbitrazh courts when contracts are breached most vividly reflects this skepticism."); see, e.g., Alfred E. Mottur, The European Product Liability Directive: A Comparison with U.S. Law, 25 L. & Pol. in Int'l Bus. 983, 1018 (1994) ("it is the litigation consciousness and the legal procedural structures within a society that determine in large part the effect of its legal doctrines"); Japan, see Eugene A. Danaher, Products Liability Overhaul: Strict Liability is Coming to Japan, Nat'l L. J., Feb. 7, 1994, at 25, 28; Algeria, see Danemene Ben Abderrahmane, New Algerian Legislation on International Arbitration, Middle E. Executive Rep., Dec. 1993, at 9; Mexico, see Roxana Alvelais, Mexican Mine Law Reformed, Am. Metal Market, Oct. 1, 1990, at 2; Modification of Mexican Arbitration Law, Mexico Trade & L. Rep., Feb. 1, 1992, at 21; Egypt, see Labour and Economic Reform, Middle E. Executive Rep., Feb. 1993, at 8; Argentina, see Argentine Senate Passes Key Social Security Reform (Reuter European Business Report, Sept. 23, 1993); and France, see Laetitia Felici, Litigation: France Improves Protection for Creditors, Int'l Corp. L., Apr. 1993, at 22 ("Until recently, the 1807 Code of Civil Procedure was still in force, which was itself largely inspired by the Colbert Order of 1667."). France introduced a new procedural code in 1976. See C.N. Ngwasiri, The Role of the Judge in French Civil Proceedings, 9 Civ. Just. Q. 167, 168 n.12 (1990).

FN9. UK Reform, supra note 5 (proposals to reform civil procedure will "reduc [e] cost, complexity and delay," creating a more "fair and cost?effective system of civil justice.").

FN10. Former Prime Minister Rao of India, for example, has noted that the economic liberalization program he initiated four years ago brought in a fresh need for speedy justice." Reuter, Oct. 6, 1995.

FN11. The study described in this article culminated in a civil process modernization conference on January 3?4, 1996 in Cairo, Egypt, (the "Conference"), attended by senior members of the Ministry of Justice and the parliamentary legal council, as well as judges, prominent commercial lawyers, and law professors. The Conference concluded with resolutions to prepare legislation in order to implement the reform proposals. The Conference also resolved to study further the development of a private mediation center, based on U.S. models. See generally Conference Report, infra note 12. The January 1995 Conference received close attention in the Egyptian press. See Home Talk, Egyptian Gazette, Feb. 4, 1996, at 1. Leading Egyptian "think?tank" participants are also discussing the reforms.

FN12. Ministry officials expect the reforms to be formally incorporated into legislation in October, 1996. The study leading to these reforms was conducted jointly by the Ministry of Justice and the Institute for the Study and Development of Legal Systems ("ISDLS"), funded by a participating agency service agreement between the United States Agency for International Development ("USAID") and the United States Information Service ("USIS") in Cairo. Prior to this article, the Ministry and ISDLS published eight comprehensive reports covering both critical assessments of current problems and recommended reforms designed to mode