The roles of judges have changed dramatically in recent decades. To date, in many legal systems, most cases settle or end through plea bargaining, in a phenomenon that has been called “the vanishing trial.” The greater part of judges’ time is spent on managing cases and encouraging parties to reach consensual solutions.

Judicial actions in the courtroom remain for the most part off the record and hard to discern. Moreover, judicial settlement practices in the United States, for example, can take place in judicial chambers, far from the public eye. Thus there is a need for physical presence of researchers in public hearings to understand what judges do today in the age of vanishing trials. Researchers of this study entered courts in London, Florence, and Tel-Aviv. The various judicial conflict resolution practices that emerged in Israel’s most active first-instance court, in Tel-Aviv, provide a new perspective on power in the courtroom, identifying new forms of legitimation and justice developed by judges as they perform their settlement-promoting roles. In addition, we discuss an alternative model, found in the Florence Court, where judges were only recently permitted to use settlement practices. There the judges are supported by interns who screen cases before trial to examine whether they may be appropriate for mediation. In court, judges may offer mediation to the parties and explain their reasoning for doing so but will usually not try to settle the cases themselves. Lastly, we showcase intervention styles that offer new visions for the judicial role.

The journey of mediation as a non-authoritative process into the court system has come full circle with one utterly different model emerging in contemporary times. As mentioned in the previous chapters, mediation has inspired hybrid judicial roles and settlement promotion and introduced consent as the foundation for many hybrid legal processes. Yet this hybridization has worked both ways, affecting mediation as well. Authority-based mediation is emerging as an advanced judicial process that generates public norms. This new sophisticated model for dealing with polycentric legal problems while preserving soft qualities of the process and keeping a narrow focus on a legal outcome is, in fact, a novel form of private adjudication. We describe this emergent form of mediation and its theoretical underpinnings.

The narratives of judges and lawyers in interviews give a behind-the-scenes glimpse into the beliefs and dilemmas underlying judicial settlement-promoting decisions in court. In this chapter we describe findings from our interviews with judges and lawyers. What is their view of the judicial role in the pursuit of settlement? What is their view of ADR? What is their perspective on the interplay between justice and efficiency? Which theories of legal justice do they develop? Findings are described on the background of the comparison between legal cultures.

This chapter introduces the vanishing trial phenomenon – the emphasis on settlement and plea bargains and the decline of the judicial verdict. This phenomenon began in common law systems and coincided with the rise of alternative dispute resolution (ADR). ADR has been promulgated through a variety of legal constructs, including national laws and transnational directives. However, to date, it is often the case that neither the normative values of adjudication nor the fundamental values of ADR (such as dialogue and relation building) prevail. In their stead, especially in common law countries, there is a drive for efficiency in both courts and mediation sessions. Efficiency has, to a large extent, become synonymous with settlement and the means by which settlement is reached receive little to no notice. Judges, in this setting, are expected to manage cases until they settle – though, as our research shows, some judges have more ambitious horizons for their role, lending new insights to the possible new trajectories. As methods to replace the judicial role are under experimentation, the value and place of the judicial role have reached a critical crossroads.

This book examined the transformation of the courts across legal cultures, and the changing roles of judges as reflecting this transformation. We show that the decline of adjudication and the vanishing trial phenomenon, together with the rise of the ADR movement, have resulted in diffused and reconstructed legal families, in new notions of judicial discretion and justice, new models of mediation and conflict resolution have emerged, and new promises for access to justice and transparency can be fulfilled.

Faced with the trajectory of legal systems today, policymakers can now contend with perhaps the most critical choice of our times. Will they continue down the road to the end of law, or will they renew its role? Will they choose the legal family that is most appropriate for their constituents, or will they let the gravitational pull toward the privatization of disputes decide for them? One might claim that the obfuscated role of law – especially in the pre-filing family – might as well be replaced by AI-based decision-making. Indeed, we show that the pre-filing family may be the most conducive to AI-based dispute resolution. However, one might choose to look at the changes that legal systems have undergone in recent decades as a mark of flexibility within legal systems – and potential for growth. As of today, the underlying motive for change has all too frequently been saving time and money for the legal systems themselves. However, if this underlying motive is moderated and retuned to respond to the needs of the individual litigant, changes of a different nature are possible. We analyze changes that can lead to human-centered design, and the harnessing of AI toward that goal.

We propose a typology that accounts for current priorities of legal systems and the main mechanisms through which they dispose of cases.

The proposed typology is the result of a five-year empirical study of legal systems, analyzing data from court dockets, court observations, and interviews with legal actors. The study uncovers: (1) legal systems that have reshaped themselves to place an emphasis on pre-filing, creating disincentives to filing cases and trial while promoting settlement; (2) legal systems that place an emphasis on pretrial, allowing filing of cases but introducing incentives to help cases settle before they reach trial; and (3) legal systems that continue to place an emphasis on trial while allowing other forms of dispute resolution.

We show that each family differs in the aim of civil justice, the function of law, the nature of the judicial role, access to justice, and the institutional function of courts. Moreover, a pre-filing emphasis seems conducive to AI-based dispute resolution that may be developed in the future. The typology allows for a dynamic observation of legal systems as they transition from one family to another, and has implications for legal reforms and harmonization.

Observing judges in action in the Florence, Tel-Aviv, and London first-instance courts, we find that settlement-related transplants that could be interpreted as broadening the judicial role and providing meaningful modes of dispute resolution for disputants in fact often constrict the judicial role, causing both the courtroom and court-related ADR processes to become forums for efficiency-based negotiation. In England, the disintegration of the judicial role is most apparent, as the promotion of settlement has led to obligatory measures preceding the filing of a claim, leaving judges only a marginal percentage of disputes to deal with. We show that the three observed legal systems may be viewed in general terms as presenting three sequential stages of the judicial role, with a possible trend toward disintegration. In addition, the legal systems may offer three transitional views of the tension between efficiency and justice and the way it unfolds. The research provides insights on the role of legal transplants and the impetus for their transformation, and the ways they affect and are affected by the surrounding legal culture.

This chapter outlines the new landscape of judicial discretion in the settlement era, referring to both critical claims of law and advanced perspectives on conflict resolution. It integrates theoretical claims as to the notion of law and legal formalism together with advanced approaches to conflict resolution. It suggests a new model for judicial discretion and provides a theoretical framework to combine the principles of conflict resolution and law as they pertain to the judicial role. In addition, it shows how judges may exercise their discretion in the courtroom (rather than through a judicial verdict). We then entwine our theories and findings, constructing a training scheme suggested for judges, which integrates conflict resolution perspectives as well as normative and ethical considerations.

While the role of judges has changed dramatically due to the vanishing trial phenomenon, the change has generally slipped under the radar. The extent and nature of the transformation of judicial roles usually cannot be deduced from reading legislation or official public legal records. This stands in stark contrast to the information age, in which a wealth of public information and a forthcoming attitude toward supplying additional information might be hoped for. In this chapter, we describe the transparency problem and our efforts to persuade courts to divulge information. Notable, this problem, which confronted us as researchers, is compounded in the case of individual litigants who have fewer means to surmount it. We describe the methodological approach that developed in the course of our research to surmount the data challenge. We show the strengths and weaknesses of each research method that we used and the way in which combined research methods have an added value, compensating for weaknesses and uncovering blind spots. By conducting court observations, coding actual court files, and analyzing them quantitatively, while interviewing judges and other legal actors, we were able to obtain a rich picture of the trajectory of cases as they move toward settlement.