Institute for the Study and Development of Legal Systems


OUNTRY PROJECTS

EGYPT

THE ARAB REPUBLIC OF EGYPT MINISTRY OF JUSTICE
REPORT
ON RECOMMENDED SOLUTIONS TO
BACKLOG AND DELAY IN THE CIVIL COURTS

June 4, 1996

I. Summary Report of Civil Justice Conference

A. Conference Summary

On January 3 and 4, 1996, the Egyptian Ministry of Justice (the "Ministry") held a Conference (the "Conference") to address two related reform proposals designed to reduce backlog and delay in the Egyptian civil courts. The Conference was attended by over 200 senior Ministry officials, judges, lawyers, law professors, and members of the parliamentary legal council.(1)

The Conference presented the reform proposals by way of authoritative papers, lectures(2)

and simulated demonstrations, followed by workshops inviting participant commentary, which was later incorporated in the final recommendations.(3)

The Conference concluded with resolutions to prepare legislation in support of two proposed reform processes: (1) case management (hereinafter "Case Management") designed to reduce delay by imposing a disciplined schedule on the preparation of civil cases for adjudication, and (2) mediation (hereinafter "Judicial Mediation"), a consensual alternative dispute resolution process designed to reduce backlog by encouraging consensual settlements of civil cases.(4)

In order to implement both Case Management and Judicial Mediation, the Conference concluded with recommendations for training programs and facilities to be developed in the National Judicial Center under the authority of the Ministry.(5)

The Ministry also decided to hold a special Conference to study the development of a private mediation institution.(6)

Each of the foregoing Conference recommendations was developed from an unprecedented, collaborative, multi-phased study of U.S. judicial streamlining and alternative dispute resolution processes and their potential adaptation to the pre-existing Egyptian legal system.(7)

This study was conducted jointly by the Ministry and ISDLS(8)

and involved permanent legal study groups comprised of prominent judges, lawyers and legal scholars from each country.(9)

B. General Goals of the Reform Measures

Egypt seeks to improve the administration of civil justice in order to strengthen both domestic and foreign confidence in the civil justice system. Pursuant to these general goals, the Ministry specifically intends to shorten the time taken to adjudicate a civil claim by imposing discipline through Case Management, and to reduce the backlog of civil cases by encouraging greater numbers of settlements through Judicial Mediation.(10)

In order to achieve these ends, without disrupting the integrity and continuity of the Egyptian civil judicial process and without requiring additional allocations of judicial resources, the proposed reforms are creatively derived from pre-existing Egyptian legal institutions, functions and processes.

C. Defining the Reform Proposals

1. Case Management

Case Management may be generally defined as the imposition of early control and discipline by a judicial officer over the preparation of a case for adjudication. The key features of case management, therefore, are as follows: (1) case management is conducted by a judicial officer; (2) case management sessions are scheduled shortly after a case has been filed but prior to any factual investigation; (3) prior to the case management session, the parties are required to meet and confer to discuss the outstanding issues of disagreement between them and the preparation of the case for trial; (4) case management involves active determination by the judicial officer of the time by which the parties must submit evidence to support their claims and defenses; (5) case management covers the preparation of a case, but not the adjudication (i.e., decision on the merits) of a dispute; and (6) case management attempts to identify and, if appropriate, prioritize wholly or partially dispositive issues for adjudication.

The Conference recommendation for Case Management incorporates each of these key features.(11)

A judicial officer (the "Case Manager")(12)

will preside over all Case Management sessions, which will be scheduled shortly following the filing of the case. The Case Manager will have the authority to require evidentiary preparation by the parties according to an enforceable schedule, and may make recommendations to the judicial panel of sanctions for non-compliance with his orders. The Case Manager will facilitate the development of a well-prepared case file to permit speedy adjudication by the judicial panel, but will not be responsible for any finding on the merits of the case.(13)

The Case Manager will order to the parties to confer in order to decide whether to pursue Judicial Mediation.(14)

Finally, the Case Manager may identify potentially dispositive issues for hearing by the judicial panel (e.g., lacking jurisdiction, proof of affirmative defenses, etc.).(15)

2. Mediation

Mediation may be generally defined as a consensual, confidential form of dispute resolution. The key features of mediation are as follows: mediation sessions (1) are attended by disputing parties and their legal representatives; (2) are conducted by a third party (or neutral), who is a trained facilitator of conflict resolution; (3) frequently begin with statements from each party of the asserted claims and/or defenses; (4) proceed with private meetings between the mediator and each party; (5) explore (a) the relative strengths and weaknesses of each legal claim and defense, (b) settlement proposals that more accurately reflect the probabilities of success on the merits, (c) the impact of these issues on the present economic value of the claim, and (d) business solutions beyond the scope of judicial relief and not necessarily based on the legal merits; (6) try to narrow the disagreements between the parties and to encourage final agreement on settlement; and (7) if settlement is achieved, assist the parties in drafting a settlement agreement to memorialize their agreement in writing. Mediation need not be obligatory, require written preparation of the legal and evidentiary positions of the parties, or include an evaluation of the merits or value of a claim by the mediator. If an evaluation is provided, it may be communicated either simultaneously to both parties or consequtively to each party in private sessions.

The Conference recommendation for Judicial Mediation incorporates the central features of mediation. Judicial Mediation will be consensual and confidential. It will be conducted by a retired judge (the "Judicial Mediator"), who will act as the neutral, or Judicial Mediator. Judicial Mediation will be offered as an alternative to litigation shortly after the case is filed; it will be voluntary and consensual. Judicial Mediation will be attended by disputing parties and their legal representatives and conducted by a retired judge, 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 necessarily 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 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.(16)

D. Problems Solved by Case Management and Judicial Mediation

1. The Causes of Backlog and Delay Addressed by the Reforms

The reforms recommended in this Report were designed carefully to address the major causes of backlog and delay in the traditional Egyptian civil process, without violating the fundamental tenets of the Egyptian legal process. This required a critical assessment and deep understanding of the major causes of the backlog and delay problem. Prior extensive, joint studies conducted by the Ministry and Institute identified two interrelated, major causal aspects of backlog and delay: (1) the excessive discontinuity and protraction of the civil litigation process, and (2) the infrequency of consensual settlements following the filing of a claim. Each problem frustrates the other. The longer litigation takes, the less likely parties will settle. The fewer consensual settlements, the more cases remain in the system, thus increasing the judicial workload. These two problems increase, to a disproportionate level, the amount of judicial activity dedicated to purely administrative matters.(17)

First, the discontinuity in civil litigation is excessive. An average civil litigation in Egypt requires thirty to forty appearances before the first instance court.(18)

A small percentage of these appearances conclude the preparation of a case for a judicial decision on the merits.(19)

Heavy daily caseloads of 70 to 200 case files per day require the judge to spend very little time on each case.(20)

The lack of case preparation, combined with the institutional pressures to address a limited aspect of each case on the judicial calendar, leads to chronic postponements.(21)

Because the cases are so frequently rescheduled, a judge is needlessly forced to reread the same file several times in order to reacquaint himself with the issues. Judges advise that approximately seventy-five percent of in-court time is dedicated to routine and ministerial functions in the preparation stage of the case, such as recording the acceptance of various forms of submitted evidence.(22)

Moreover, judges are reluctant to require more timely submissions of evidence and legal argument because they fear that enforcement of a deadline will be perceived to reflect judicial prejudice on the merits. For these reasons, judicial panels are burdened with many matters more suitable for the attention of judicial administrators. This strains judicial resources, and decreases the time afforded to substantive judicial decision-making, thus increasing delay.

Second, very few disputes are consensually resolved after they are filed. This increases the number of cases in need of formal judicial dispute resolution. Even though mediation is obligatory in labor and family disputes and, along with arbitration, is the primary method of dispute resolution in rural areas, mediation opportunities are neither institutionalized nor systematically available for civil litigants. Even where mediation is procedurally permissible, it is seldom used and not encouraged. Egypt has no institution dedicated to providing mediation training and alternative dispute resolution opportunities for domestic mediation processes. The very small percentage of consensual settlements tend to occur very late in the litigation process after much expenditure of time and money. The lack of consensual settlement opportunities early in the course of litigation increases the backlog of cases. The more cases in the system, the longer it takes for a decision to be rendered on any one case, thereby increasing delay.

2. The Solutions to Backlog and Delay Implemented by the Reforms

Case Management is designed primarily to reduce delay by reducing the discontinuity and protraction of the civil litigation process, thereby liberating the judicial panels to focus on their primary function of adjudication on the merits. Discontinuity will be reduced by requiring case preparation at an early stage in the litigation, by setting reasonable schedules by which the claims and defenses must be prepared, and by enforcing those deadlines with sanctions imposed by the courts. The number of appearances and the time required for preparation will be dramatically reduced and a much larger number of cases on the judicial calendar will be ready for adjudication. Judges will more freely exercise their pre-existing sanction power to enforce deadlines and require case preparation because any act will be based on the recommendation of a judge qua Case Manager who will be neutral on the merits. Case Management will not only decrease the time from filing to judicial decision, it will reduce the overall backlog in the system by getting cases resolved more quickly. Secondarily, it will be likely to increase the number of consensual settlements by requiring the parties to confer to choose Judicial Mediation and by forcing the parties to face the likelihood of adverse decision more quickly.(23)

Through the availability of Judicial Mediation, caseloads themselves are expected to 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. 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.

In sum, the Conference proceedings concluded that Case Management will enable judges, consistent with their authority, to impose discipline on the civil litigation process, including sanctions on procedural actors (e.g., lawyers, experts), and, thus, to reduce the time required to adjudicate a civil dispute. The Conference also concluded that, through the incorporation of Judicial Mediation, the number of consensual settlements out of court will increase, thereby reducing backlog and freeing the courts to spend time on other cases, thus also cutting delay.

II.. Historical Background of U.S.-Egypt Collaboration

A. A Brief History

This report is the culmination of nearly four years(24)

of unprecedented international collaboration between the Ministry and ISDLS in an extensive, joint comparative law study.(25)

At the completion of the assessment of the practical operation of the Egyptian civil justice process, ISDLS demonstrated and lectured(26)

on a wide variety of U.S. judicial streamlining and modern alternative dispute resolution mechanisms.(27)

After an extensive internal study following the lectures and demonstrations, the Ministry selected four of these U.S. mechanisms for further intensive examination by the Egyptian Study Group in the U.S. The four U.S. mechanisms selected were case management, judicial settlement, early neutral evaluation, and mediation (each described in detail below).(28)

Prior to a one-month study in September and October of 1994, the Ministry anticipated that a new judicial branch of Case Managers would be established for the adaptation of U.S. judicial streamlining mechanisms and consensual settlement processes and that retired judges would be utilized for the adaptation of alternative dispute resolution techniques. The preliminary proposals were designed to modernize the Egyptian civil process without undermining the integrity of the pre-existing process. The Ministry approved the reforms on a preliminary basis, following the Study Group's report published in November of 1994. In the Fall of 1995, the Ministry, in conjunction with ISDLS, wrote a case file in order to simulate the reform processes,(29)

developed demonstrations of the case management and mediation processes. These processes were then demonstrated at the Conference. Following each demonstration, smaller groups of legal experts gave commentary in an interactive workshop run by a facilitator and recorded by a reporter.(30)

After the workshops, the reporters shared the commentary, on which the Ministry based its final resolutions.

B. The Comparative Approach to the Reforms

The development of the specific reform measures to meet Egypt's general goals required, first, a conceptual understanding of the chosen processes utilized to solve court congestion problems in the U.S. and, second, a creative and feasible adaptation of these U.S. mechanisms and techniques to pre-existing Egyptian institutions, processes and resources. Even if the reforms were initially inspired by U.S. models, they have been carefully designed by Egyptian legal opinion leaders to be culturally sensitive to the Egyptian legal process.(31)

1. Study of U.S. Solutions to Court Congestion

Accordingly, the Egyptian Study Group developed an appreciation for the actual practice and significance of each of the U.S. judicial streamlining and alternative dispute resolution processes chosen for study and adaptation to the Egyptian system: case management, judicial settlement, early neutral evaluation, and mediation.

First, case management, as described above, encompasses a simple but comprehensive judicial process that expedites and increases judicial control and oversight of (i) the identification of dispositive substantive issues and (ii) the time required to complete the procedural steps of a civil litigation. This process immediately follows the filing of a civil complaint, before the discovery (i.e., factual investigation) of evidence, and requires the parties to meet and confer to discuss the outstanding issues in the case and a plan to prepare the case for trial. Case management is utilized primarily to streamline the disputed issues and to discipline the procedural calendar, thereby preventing the use of delay as a litigation strategy and also reducing the cost of civil litigation.

Second, mediation, as described above, involves the use of a facilitator trained in conflict resolution. Mediation is consensual and confidential. It encourages the parties to discuss their positions with greater candor and fosters compromise. For these reasons, litigants turn frequently to mediation to resolve civil disputes. Increasing numbers of settlements not only ensure greater and shared satisfaction with the results of litigation, but also significantly reduce from the court's docket the number of matters to adjudicate.

Third, judicial settlement denotes the involvement of a judge (not assigned to adjudicate the dispute) in consensual settlement of a civil case. The judge normally performs a role similar to that of a neutral in mediation (described above). The success of judicial settlement is attributable to (i) the advantage of utilizing judicial experience in evaluating the settlement value of a civil claim, and (ii) the separation of private and confidential settlement negotiations from public adjudicatory functions.

Finally, early neutral evaluation is a court-ordered alternative dispute resolution process conducted by a lawyer with certified expertise and experience in particular legal subject matter. In this process, shortly after the case is filed, the lawyer (acting as a neutral) meets with the parties, who in confidence articulate their factual and legal positions. The neutral provides an informed evaluation of the case, and, if appropriate, conducts consensual mediation of the dispute. Early neutral evaluation has been extremely effective in reducing court congestion by helping the parties (i) to expedite preparation of their arguments and supporting evidence, (ii) to gain a better understanding of the other side's position and the likelihood of success, and thus (iii) to calculate the settlement value of the claims with greater accuracy. Each of the foregoing judicial streamlining and alternative dispute resolution processes reduces backlog and delay in the U.S. courts.

2. Adaptation of U.S. Processes to Egyptian Reform Measures

An appreciation of U.S. processes and their significance in the reduction of court congestion, however, was necessary but not sufficient for the formulation of effective and feasible reforms in Egypt. Without a creative transformation of these processes to suit Egyptian institutions and procedures, the U.S. mechanisms and techniques would have been unfeasible. Therefore, the Study Group recommended not the adoption, but the adaptation of these U.S. processes to the pre-existing components of the Egyptian civil justice system. Accordingly, these reforms are designed to be culturally sensitive to the needs of the Egyptian legal process.

a. Summary of Institutional Reforms

In particular, the Ministry identified two potential constituencies to implement these 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 establish (i) a Case Managers' office to conduct case management functions and (ii) court-recommended, consensual Judicial Mediation conducted by trained and certified retired judges ("Judicial Mediators"). These two groups will coordinate their distinct functions to achieve the maximum level of efficiency in the litigation process. 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.

b. Summary of Procedural Reforms

The reform measures address the major causes of court congestion under the pre-reform Egyptian civil process. In sum, Case Management will enable judges, consistent with their authority, to impose discipline on the civil litigation process, including sanctions on procedural actors (e.g., lawyers, experts), and, thus, to reduce the time required to adjudicate a civil dispute. Through the incorporation of Judicial Mediation, the number of consensual settlements out of court will increase, thereby reducing backlog and freeing the courts to spend time on other cases.

These two procedural reforms 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 forcing 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, 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 decision-making. These two reforms will decrease backlog by reducing delay and curtail delay by decreasing backlog.

c. Integration of Institutional and Procedural Reforms

First, drawing on U.S. case management techniques, the Case Manager will curb backlog and delay through the use of several mechanisms. The Case Manager will (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, (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 will have 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 will be apprised of, and thus benefit from, the decisions reached in the Case Management process. In these ways, the Case Manager will reduce the time needed for both consensual mediation, if chosen, or adjudication by judicial panels.

Second, drawing on U.S. judicial settlement, early neutral evaluation and mediation, Judicial Mediation will (i) involve a neutral, expert evaluation of the case available at any time after the case is filed, (ii) allow, according to confidentiality agreements, parties to speak with greater candor about their positions, (iii) encourage the parties to prepare their positions early in the litigation, (iv) facilitate greater understanding of opposing viewpoints and more accurate assessments of the settlement value of the claim, and (v) streamline the issues to be eventually litigated and schedule dispositive hearings before the judicial panel, if settlement efforts are not yet successful. As in mediation, including the mediation process incorporated in early neutral evaluation, Judicial Mediation will (i) involve the use of a trained facilitator trained in conflict resolution, (ii) be consensual and confidential, and (iii) result in increasing numbers of settlements. Judicial Mediation will draw on a retired judge's experience in evaluating the worth of a civil claim and will foster greater candor and eventual settlement by separating confidential settlement negotiations from public adjudicatory functions. The Ministry anticipates that the implementation of each of the foregoing adaptations of U.S. processes will significantly reduce backlog and delay in the Egyptian civil courts.

III. General Approach to Solving the Problems of Backlog and Delay

A. Institutional Solutions

The general approach to institutional solutions(32)

is two-fold: the creation of a Case Managers' office,(33)

and the certification of retired judges as Judicial Mediators.(34)

1. Case Managers

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(35)

of four to six prosecutors will act as Case Managers at the primary court level and will report directly to the Chief Judge of the Primary Court.(36)

The staff of Case Managers will be judges of at least four (4) years' experience, and will comprise 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.(37)

The Case Managers' office (at the Primary Court level) will be responsible for all new case management(38)

proceedings in accordance with new parliamentary legislation and Ministry guidelines.(39)

These case management proceedings will include meetings with the parties aimed at early preparation of claims and defenses, including supporting legal authority and evidence, the establishment of procedural calendars, including time limits on the submission of evidence, orders requiring the parties to confer on a choice of Judicial Mediation or normal litigation (the "Order to Confer") (see below), and attempts at narrowing the factual and legal issues for the court's attention. The Case Manager will enjoy many of the powers vested in the criminal prosecutor; however, the Case Manager will not be in any way responsible for the adjudication of the case on the merits. Finally, the Case Manager will have the power to prepare the case for adjudication by the judicial panel and, when appropriate, recommend to the judicial panel sanctions for failure to comply with the procedural requirements, such as those that limit the time of each procedural step, the number of appearances, submissions of evidence, extensions, and the designation of special proceedings. Sanctions recommended by the Case Manager to the judicial panel may include dismissal,(40)

default judgment;(41)

claim, issue and evidentiary preclusion, and civil penalties.(42)

2. Judicial Mediators(43)

Second, the Ministry will establish court-appended Judicial(44)

Mediation(45)

for commercial and civil cases.(46)

Retired judges will be trained, certified and selected to act as Judicial Mediators. Case Managers will inform the parties of their obligation to confer in their choice of one of two options: Judicial Mediation or normal litigation, consistent with the case management schedule. If the parties fail to choose Judicial Mediation within ten (10) days, the litigation will proceed in due course before the judicial panel according to the case management decisions of the Case Manager. If the parties elect to engage in Judicial Mediation, the Case Manager will refer the parties to Judicial Mediation, inform the court accordingly.(47)

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. The mediation process and training will be consistent with that familiar to Egypt. Even if a Judicial Mediation is initially unsuccessful, the Ministry expects that (i) it will force the parties to prepare their claims and defenses early on in the case, including the development and gathering of supporting evidence, and (ii) it will assist the parties in focusing attention on the outstanding issues of disagreement. Judicial Mediators may assist the parties in reaching agreement on specific, if not wholly dispositive, issues in order to reduce the time and expense to the parties and the courts if the litigation continues.

B. Procedural Solutions

With the creation of the Case Manager and the court-recommended and certified Judicial Mediator, the Ministry will implement an assortment of procedural solutions to the problem of backlog and delay. In general, these procedural solutions include the establishment and enforcement of procedural calendars, including limitations on (i) time taken between appearances and the submissions of evidence, (ii) the number of appearances, (iii) extensions, and (iv) special proceedings. Enforcement powers include the recommendation of dismissal, default, claim, issue or evidentiary preclusion, and the imposition of civil penalties. Other procedural solutions include the determination of suitability of a limited number of disputes for Judicial Mediation, attempts to eliminate issues on which parties agree and to focus the attention of the parties, Judicial Mediators, and judicial panels exclusively on issues of outstanding disagreement. Finally, all administrative decisions, except final determination of sanctions, will be the sole discretion of the Case Manager and thus non-reviewable.

IV. Specific Approach to Solving Backlog and Delay: An Integrated Chronology of Institutional and Procedural Reforms in the Life of a Case

The following procedural chronology integrates the reforms in a step-by-step summary.

A. Filing

Step One: The Complaint is filed with the clerk of the court,(48)

in accordance with Article 63.(49)

Step Two: The Complaint is sent internally to the Case Managers' Office,(50)

where it is filed, docketed,(51)

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 merely sends the forms rather than noting which of the requirements has not been met. Alternatively, the standardized notification may 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 (30) days from the date of service of the Complaint on the defendant by the court,(52)

(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,(53)

and (iii) a list of penalties that may be recommended by the Case Manager for imposition by the judicial panel.

B. 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.

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. Such 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 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 choice of Judicial Mediation or normal litigation, consistent with the case management schedule. If the parties fail to choose Judicial Mediation within ten (10) days, the litigation will proceed in due course before the judicial panel according to the case management decisions of the Case Manager. If the parties elect to engage in Judicial Mediation, the Case Manager will refer the parties to Judicial Mediation, inform the court accordingly.(54)

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.(55)

Step Four: If at least one of the parties fails to elect Judicial Mediation within ten (10) days, the case proceeds under the direction of the Case Manager in his case management capacity. If both parties consent to Judicial Mediation, the Case Manager then issues a standard order (the "Judicial Mediation Order"), establishing a calendar of a maximum of sixty (60) 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 Mediation Order authorizes at least one appearance before the Judicial Mediator. Subsequent meetings may be approved only upon certification of Judicial Mediator that the continuation of mediation will be productive. The Judicial Mediation Order contains an attachment with a standardized questionnaire of questions to be asked by the Judicial Mediator to give the parties an opportunity to prepare for said mediation sessions.

C. The Judicial Mediation(56)

(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, which sanctions to the parties will be applied in the sole discretion of the judicial panel upon recommendation by the Case Manager). (Sanctions against the violations of confidentiality by the Case Manager are to be handled internally within the Ministry of Justice.)

Step Two: The Judicial Mediator reviews the 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 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 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 first mediation session, the Judicial Mediator certifies to 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 (30) 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 (30) 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 (30) days of the last mediation session.

D. 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 (30) 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.

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

a. What are the relevant facts of the case?

b. What claims/defenses do you have?

c. How much in damages is claim worth?

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

e. Which legal authorities support your position?

Please note, however, that 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 at that time be granted; however, the specific length of time rests in the sole, non-reviewable 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).

FOOTNOTES

1 A description of the Egyptian Conference participants is appended hereto as Attachment A. Participating from the U.S. as delegates from the Institute for the Study and Development of Legal Systems (ISDLS) were Chief Judge Clifford Wallace of the Ninth Circuit Court of Appeals, Stephen A. Mayo, Chief of the U.S. Delegation and Executive Director of ISDLS, and Professor Hiram E. Chodosh, Academic Advisor and Legal Reporter for ISDLS and Director of Comparative Legal Studies at Case Western Reserve Law School.

2 Lectures and speeches were given by the Minister of Justice, Counselor Maher Abdel Wahed, Counselor Dr. Fathi Naguib, Counselor Ali El Sadek, Ambassador Edward S. Walker, Jr. and Chief Judge Clifford Wallace of the Ninth Circuit Court of Appeals. The lectures by Counselor Wahed, Counselor Naguib, Counselor Sadek, and Ambassador Walker are appended hereto as Attachment B.

3 The resolutions adopted by the Conference are [not] appended hereto [this Web version].

4 These proposals have, to a great extent. an integrated design. Case Management incorporates mediation by requiring the parties to confer early in the case to determine whether to pursue Judicial Mediation or to remain in the traditional litigation process. Judicial Mediation incorporates Case Management processes by requiring thorough and early case preparation by the parties and concluding with an attempt to narrow the issues for judicial decision-making.

5 The proposed training programs are based on the recommendations of Chief Judge Wallace [not appended hereto this Web version].

6 Based on the success of the Conference and widespread interest in providing alternatives to traditional Egyptian legal processes for both domestic and foreign businesses, the Ministry has asked ISDLS to assist in the study and development of private mediation institutions, based on the model of the Judicial, Arbitration and Mediation Service ("JAMS").

7 In an on-site, one-month study in September and October, 1994, the Study Group attended actual proceedings and met with legal opinion leaders, including lawyers and private mediators, in all of these U.S. processes. The Study Group attended a wide variety of civil processes, including without limitation, dozens of case management, judicial settlement and private mediation sessions, conducted by judges, lawyers and private mediators. A list of those who met with the Study Group is attached as Attachment E to this Report. In the Fall of 1995, with the assistance of ISDLS, the Study Group developed simulations of the reformed processes.

8 ISDLS's report published in November of 1993, which includes the history, methodology and recommendations of ISDLS's civil process reform project in Egypt, and which led up to the Study Group's visit to San Francisco in September and October of 1994, has been integrated into this Report.

9 These specific reforms were developed by a group of five judges (the "Study Group") selected by the Ministry of Justice to work with ISDLS. The Study Group consists of five judges from Cairo: Omar Hafeez, Justice of the Appellate Court; Hany Hanna, Prosecutor at the Court of Cassation; Nabil Sadek, District Attorney at the Court of Cassation; Khaled Korraa, Chief Judge of the Primary Court; and Yehia Khashaba, Chief Judge of the Primary Court. Judge Sameh El Torgoman, on leave of absence from the Ministry and currently a S.J.D. student at Stanford Law School, also participated in the Study Group.

10 Please note that the Study Group also considered the adaptation of an explicit mechanism for Summary Judgment. In the U.S., Summary Judgment allows a court to rule on the law where there is no issue of a disputed material fact and often leads to an early disposition of a claim. The Study Group did not recommend adaptation of Summary Judgment for the primary reason that members of the Egyptian judiciary view these as premature (and thus, prejudicial) dispositions. However, through the Case Manager's identification, prioritization and scheduling of potentially dispositive issues for adjudication by the judicial panel, Case Management will achieve many of the benefits of Summary Judgment as it is employed in the U.S.

11 It should be noted that the judicial panels already possess the power to perform the basic Case Management functions (e.g., powers to summon the parties, request evidence, schedule hearings, impose sanctions, including dismissal for failure to appear, etc.). It would be well advised for the Ministry to hold meetings with the judiciary in order to encourage them to exercise these powers. The effectiveness of doing so on a systematic level could be studied and then used to inform the implementation of the specialized Case Management function recommended in this Report.

12 The English draft of this Report has denominated the judicial officer performing this function as a Case Manager. However, the ultimate choice of name is still an outstanding issue for the Ministry to resolve. It should be noted that objections to the name, Civil Prosecutor, were raised at the Conference, and the alternative, Preparatory Judge, was suggested. This disagreement was not based on purely semantic preferences but concerned an important issue concerning the institutional responsibilities of the Case Manager. If called a Civil Prosecutor, he would appear have responsibility to the office of the General Prosecutor. If called Preparatory Judge, he would appear to have responsibility to the judiciary. A third alternative, regardless of the name chosen, would be to have dual judicial and prosecutorial reporting requirements, as contemplated in earlier drafts of the proposals, and as currently structured in the instance of the Court of Cassation prosecutors. Under this scenario, Case Managers would report to the Chief Judge of the Primary Court and to the General Prosecutors' office. For present purposes, this institutional proposal has been left unaltered in this Report.

13 In order to avoid overwhelming the newly designed Case Management function with additional mediation responsibilities, this Report does not recommend, at the beginning of implementation of the Case Management reform, that Case Managers mediate disputes. However, legislation prepared by the Ministry should not preclude a more mature Case Management system (comparable to U.S. Case Management) from offering a mediation option to the parties. Two features of the Case Management process, as described herein, place the Case Manager in an excellent position to mediate disputes between consenting parties: the absence of any adjudicatory responsibility and, as a result of his role in preparation of the dispute for decision, his familiarity with the evidentiary and legal positions of the parties. However, the mediation function should not be undertaken by the Case Manager until the Ministry becomes confident that training and other resource allocations are sufficient to avoid creating yet another bottleneck in the early phases of civil litigation. Furthermore, overcoming cultural restraints that currently frustrate judge-lawyer communication will require a gradual and staged adjustment, thus counseling against an immediate implementation of mediation by Case Managers.
See infra note 14.

14 The Ministry is well aware that through the Case Management reform it is addressing two current communication problems: lawyers in litigation do not talk to one another, and, for fear of undue influence, judges and lawyers are not permitted by law to communicate at all. The order to confer will require lawyers to speak to one another, and the Case Management Conference will require discussion to take place between judges (not acting in their formal capacities as members of a judicial panel) and lawyers.

15 Concerns have been raised about the potential for abuse of the Case Management powers resulting in prejudice to the parties, without the review of the courts. The Ministry has considered these concerns and addressed them by limiting the Case Management powers to purely administrative functions (e.g., summoning the parties to appear, collecting the submitted documentation, ordering the parties to confer on Judicial Mediation, scheduling potentially dispositive hearings, recommending (not enforcing) sanctions). For each of these powers, the judicial panel's review provides a check and limit. The Case Manager does not have the power to make binding judgments regarding the court's competence or jurisdiction. Moreover, in the case of alleged prejudice, the Case Management function does not eliminate any rights to appeal final judgments on allegations of prejudicial error by the Case Manager. It is important to note that interlocutory appeals will not be available because to do so would allow the parties to delay interminably even the Case Management process.

16 As noted in the foregoing paragraph, mediation is not necessarily evaluative. Mediation may be purely facilitative, i.e., no evaluation is provided by the mediator, or evaluative, i.e., the mediator provides his evaluation of the claim on the merits, or combine both facilitation and evaluation, e.g., evaluation is withheld until all efforts at facilitated settlement have been exhausted. The Ministry has not yet determined any particular blend of facilitation and evaluation in the development of Judicial Mediation. Further study and experience in adapting the mediation process to the civil and commercial setting will be necessary before Judicial Mediation can be characterized according to this distinction.

17 For a comprehensive assessment of the problems of backlog and delay, see Attachment F [not attached to this Web version].

18 The daily judicial process proceeds in small steps: a piece of evidence is accepted; an extension granted; an expert appointed; an argument heard; more evidence requested; a deadline set and extended again, and so on.

19 Judges estimate that only fifteen to twenty percent of the cases scheduled for hearing are prepared for adjudication on the merits.

20 Many judges report that they can only hear seventy cases per day, which leaves them with only four minutes to spend on each case.

21 Indeed, many judges perceive the enforcement of deadlines to be futile, because even if deadlines could be enforced, the judges would not have sufficient time to respond to cases ready for adjudication. Ironically, however, the less significant matters appear to be a more critical cause of backlog and delay than time taken to reach final decisions.

22 Experts estimate that "[t]he time consumed by the preparation phase is two years, whereas the adjudication phase does not exceed two months." See Dr. M. Fathi Naguib, "The Role of the Civil Prosecution in Simple Litigations."

23 U.S. legal experts believe that an early trial date is the most significant cause of early settlements.

24 During this time, full delegations from ISDLS have spent over seven full weeks in Egypt, conducting various comparative law programs and meetings. Individual Institute representatives have attended innumerable additional meetings in Egypt over the four-year period. A more extensive history is appended hereto as Attachment G [not attached to this Web version].

25 The entire project was funded through a participating agency service agreement between the United States Agency for International Development and the United States Information Service in Cairo.

26 This visit occurred in November, 1993.

27 In addition to the mechanisms chosen for later study, ISDLS demonstrated summary adjudication ("Summary Judgment") and arbitration.

28 See, e.g., notes 38, 44 and 45 below.

29 A copy of the case file is appended hereto.

30 The issues raised by the commentary are identified in Attachment I, appended hereto [not attached to this Web version].

31 For a presentation of the approach to comparative legal scholarship that informs this approach, see Attachment J [not attached to this Web version].

32 The success of these reforms must be measured over time. In order to do so, the Ministry intends to develop a monitoring system in order to evaluate the time and expense saved by these reform processes.

33 The Case Manager draws on the model of the criminal prosecutor in Egypt and is analogous to the U.S. Magistrate Judge. The Court of Cassation has "prosecutors"; however, they prepare cases on the legal merits. In contrast, the Case Manager will not prepare the cases on either the factual or legal merits. The Case Manager will be responsible for the procedural management of the case.

34 At least in the first stages of development of this process, Judicial Mediators will be paid a modest sum by the court for their services. Later, depending on the success of this process, requiring private contributions from the parties to pay for the Judicial Mediator's time should be considered.

35 The precise number of judges serving in this capacity can only be determined after further study of the number of cases filed and the number of Case Managers sufficient to handle the caseload effectively. Such a study will allow the Ministry to avoid creating a bottleneck of backlog and delay in the Case Managers' office itself.

36 In order to maintain administrative continuity, this special body of Case Managers should not be subject to the normal rules of rotation between districts, courts and judicial panels.

37 Although transferal of active judges to the newly formed group of Case Managers will reduce the number of judges available to adjudicate disputes, the Ministry believes that the specialization of this administrative function will significantly reduce the workload of the judicial panels, thus more than compensating for any short-term loss of judicial personnel.

38 The scope of the Case Manager's duties outlined in this Report has been inspired in part by U.S. case management procedures, in which the court becomes actively involved in the procedural development of a case in the early stages. Case management in the U.S. ordinarily begins by requiring the parties to meet and confer with one another shortly after the claim has been filed to: (i) discuss the merits, (ii) identify key issues; (iii) explore utilization of alternative dispute resolution; and (iv) to arrange for the efficient exchange of information. Counsel to the parties are then required to issue a joint written statement of the results of the meeting. Following this submission, the court holds a case management Conference, in which the court and the parties focus on the issues discussed in the previous meeting and the court establishes a procedural plan and calendar for the case. Case management has been successful in streamlining the procedural process of civil litigation.

The Case Managerial processes differ, however, from U.S. case management in two key respects: (i) no written preparation will be required; and (ii) the schedule for court appearances, submissions of evidence, etc. will be pre-established and non-negotiable.

39 Under current practice, the parties are required to submit a summary of all claims and defenses to the court. These summaries will be given to the Case Manager and provide the initial basis for case management decisions.

40 Dismissal is already authorized by Article 70, which provides that if the defendant is not served within ninety (90) days of the filing of the complaint, the case will be dismissed (without prejudice). The case will also be dismissed (without prejudice) if the plaintiff does not appear at trial. If the defendant is personally served and misses the appearance date, the judge may consider the defendant present and proceed with the case.

41 Judicial authority to issue a default judgment (with prejudice) for failure to appear may require parliamentary procedural amendments. However, this should be seriously considered because the threat of a default judgment in which the court issues a judgment with prejudice against the non-appearing party may be an effective incentive for parties to take responsibility for timely appearances.

42 The Case Managers' powers and the limits on those powers are described in greater detail Attachment K appended hereto.

43 Judicial Mediation is inspired in part by the study of two distinctive U.S. alternative dispute resolution: early neutral evaluation and mediation. Whereas Judicial Mediation combines and rejects certain aspects of these U.S. processes, it is specifically designed to suit the conditions and experiences of the Egyptian legal system. First, mediation is (along with arbitration) a common form of consensual dispute resolution in rural settings. Judges themselves, who often reside in such rural areas, are often called upon to conduct mediation for local disputing parties. Second, mediation is obligatory in all Egyptian family and labor disputes. Third, mediation and arbitration are utilized increasingly to resolve international commercial litigation at the Cairo Regional Centre for International Commercial Arbitration (the "Cairo Center"). Furthermore, a judicial role in conciliation (i.e., settlement) is also well known to the Egyptian civil process. The current procedural law allows a judge to attempt conciliation between the parties before the litigation proceeds and provides court-cost reduction incentives to parties willing to settle their disputes before advancing to trial. The Ministry is evaluating an increase of such incentives. Because utilization of senior lawyers (unless themselves retired judges) will not be practicable in Egypt, and because of the need to simplify the reform measures, the Ministry has decided to integrate a single alternative dispute resolution process, which will include the elements of both evaluation and mediation, but will be limited to the use of retired judges trained in mediation. This process will be called Judicial Mediation.

44 Early neutral evaluation in the U.S. involves a meeting within three to six months after the initiation of the claim between the parties, their legal representatives and a neutral, third party, who is a senior lawyer experienced in the subject matter of the dispute (the "Neutral"). Prior to each session, the lawyers prepare the legal authorities and factual evidence in support of their clients' positions. The Neutral poses questions to each side to explore further their positions and the critical issues of disagreement. Following the joint session, the Neutral prepares an outline of the issues and an evaluation of the outcome of the case, which is then communicated to the parties either jointly or (more frequently) separately. If fruitful, the Neutral continues to meet with each party in private caucus to pursue settlement discussions. If settlement is not reachable, the Neutral then discusses case management and assists the parties in reaching agreement on a procedural plan for the case. All communications, except those expressly agreed to in the case management plan, are confidential. This process results in the parties gaining a better understanding of their respective positions and the likely outcome if they proceed with litigation. Early Neutral Evaluation has been successful in achieving greater numbers of settlements and significantly reducing the time and cost of the litigation.

Judicial Mediation, as established in these reforms, differs from early neutral evaluation in three key respects: (i) only retired judges will be certified as neutrals; (ii) no written presentation, other than the case summary already required, will be demanded of the parties, and (iii) the Judicial Mediator will not assist with case management, other than to help the parties stipulate to any areas of agreement between them.

45 The second U.S. process inspiring this reform is mediation. Mediation involves a meeting at any time during the lawsuit between the parties, their legal representatives and a neutral, third party, who -- whether former judge or lawyer -- is a trained facilitator at conflict resolution. As in early neutral evaluation, prior to each session, the lawyers prepare the legal authorities and factual evidence in support of their clients' positions. The mediator often allows the parties to voice their position in a joint session before meeting privately to discuss settlement opportunities. Frequently, the mediator shares with both parties or privately with each party an informed prediction of the outcome of the litigation, assuming it were to proceed. All communications are confidential. As in early neutral evaluation, mediation results in the parties gaining a better understanding of their respective positions and the likely outcome if they proceed with litigation, and it has been particularly successful in achieving significant numbers of settlements.

However, mediation differs from early neutral evaluation in several key respects. First, a mediator often declines to express an opinion about the value of the case. Second, the major goal of mediation is to achieve a settlement, whereas the evaluator provides an evaluation to provide the parties with the informed evaluation of an experienced, neutral third party. Fourth, the mediator is an expert in the art of helping people reach consensual agreements, whereas an early neutral evaluator has expertise in the legal subject matter of the dispute. Fifth, mediation may take place at any time, whereas early neutral evaluation takes place early following the filing of a claim. Finally, mediators focus their attention on the parties, whereas evaluators tend to focus on the likely views of judges and juries.

Judicial Mediation, as established in these reforms, differs from U.S. mediation in three key respects: (i) it will occur very early in the litigation; (ii) only retired judges will be certified as neutrals; and (iii) no additional written presentation will be required of the parties.

46 The Ministry has not yet determined any particular category of cases that is best suited for Judicial Mediation.

47 In order to avoid another bottleneck of procedural delay, parties should be granted only one request to remove a Judicial Mediator for an alleged conflict of interest or breach of confidentiality, which request must state and prove material grounds of the allegation. The Case Manager will make the determination as to removal, and it will be non-reviewable.

48 For present purposes, the Ministry has limited the reforms to implementation in the Primary Court; however, some of them may be adapted to the District Courts (below) and the Appellate Courts (above).

49 Article 63 provides that the complaint be filed by the plaintiff to the clerk, in which complaint the facts and legal principles of the dispute are enumerated. The complaint includes the name of the plaintiff, occupation, place of residence, the name and residence of the defendant, the date the case is filed, the name of the court being filed in, the names of counsel and their addresses. The status of the complaint is then described, including the issues of law at hand. The lawyers frequently do not refer to the law in these claims, allowing the judge more freedom to choose the law in hearing the case.

50 The Ministry has not yet determined the precise category of cases that will proceed under the administrative control of the Case Manager. Further study on the number of cases filed and the availability of sufficiently trained personnel will inform this determination.

51 Article 67 provides in pertinent part that the clerk must file the date of filing in a special ledger to state the claim and then fixes the date of trial (according to availability of the courts). The complaint is referred to the Court Officer/Bailiff, who has thirty (30) days to serve the complaint to the defendant. If the officer delays the service, a fine will be incurred upon his office. The case will not be considered by the court until service is complete. The Ministry will allow the Case Managers' Office to supervise the Bailiff's activities, and with international assistance, consider computerizing a court docketing system.

52 Article 66 currently provides that court appearances should be scheduled for fifteen (15) days after servicing of the complaint. In order to give the parties more time to gather their evidence, this time should be extended to (30) days. In addition, Article 66 allows for extensions to be granted of up to three (3) months for those required to travel to appear in court. One way to limit the administrative time allocated to granting extensions would be to grant automatically an extension of two months to any defendant not residing within a specified radius of the court.

53 This should build on pre-existing judicial authority under Article 65, by first notifying the parties as to their obligations and, second, the penalties that may be imposed upon failure to meet the statutory requirements. Article 65 provides in pertinent part that the plaintiff must pay all fees and submit copies of the complaint, all relevant documents and all other necessary support for his claim to the court and that the defendant must submit to the clerk a written submission of his defense.

The penalties may solve the problem of non-compliance. Forcing the parties to appear with such evidence at the first meeting will eliminate the administrative problem of the courts' obligation to copy and distribute every new document to each party.

54 In order to avoid another bottleneck of procedural delay, parties should be granted only one request to remove a Judicial Mediator for an alleged conflict of interest or breach of confidentiality, which request must state and prove material grounds of the allegation. The Case Manager will make the determination as to removal, and it will be non-reviewable.

55 Please note that Article 64 allows for a judicial order to mediate. However, due to procedural aspects of Article 64 that are outdated, e.g., allocations of responsibility to political committees that no longer exist, Article 64 would require revision for court-appended mediation of the sort established herein.

56 Given the expected lack of court-room and office space for this new process, the Ministry will utilize the courts after 3 p.m., when they are not in session.