Originially from: World Arbitration and Mediation Review (WAMR)

The Management of Change
in the Judiciary: A Case Study
of Court-Annexed Mediation
in the Ljubljana District Court
by Aleš Zalar, Presiding Judge, District Court of Ljubljana
I. WHY SHOULD A COURT OFFER MEDIATION?
A. Crisis of Civil Justice
Like many traditional democracies and transition countries,
Slovenia is facing a crisis in its civil justice system as a result of the
persistent inefficiency of the courts. Criticism of the civil courts has its
origin primarily in the slowness of judicial proceedings, the level of legal
costs—making access to courts difficult—and the legal unpredictability of
case law, which frequently gives the appearance that the courts have lost
contact with what is going on in society. This notion of a gap between
reality and ideals has taken a firm hold in the Slovenian public’s
perception of the performance of the civil judiciary, and is manifest in the
low level of public confidence in the courts, which generally reflects how
the courts deal with standard civil disputes in which ordinary parties are
involved.
In seeking to identify opportunities for the civil judiciary to
improve the extent to which it meets the reasonable expectations of the
parties in a dispute, we need to recognize that it is not only the courts that
have problems—litigants and their attorneys face difficulties, too.
Measures aimed at reducing court backlogs must therefore ensure not only
faster administration of justice, but also improved participation by the
parties in the dispute, cheaper procedures, earlier attention to the dispute
by attorneys and their clients, faster exchange of information, and so on.
The difficulty in seeking to respond to the question of how a court
should ensure more effective resolution of disputes is further exacerbated
by three tensions that accompany every disputed relationship: the tension
between creative and distributive value in a dispute, the tension between
empathy and assertiveness, and the tension between the interests of the
principal party and those of his agent (Mnookin, 2000).
In these circumstances, a traditional civil dispute, which is like a
football match in which the two parties to the dispute try to score as many
goals as they can, is no longer able satisfactorily to fulfil the interests of
the plaintiff and the defendant. Assuming that a formal dispute has come
about following the failure of negotiations, as a form of direct bilateral
exchange between the parties, in practice what is increasingly becoming
established is a formal but sufficiently flexible procedure in which the