Court in Session / Wannabe Mediators Asked to Volunteer Their Efforts

The Courts Administration recently extended the tender for accepting mediators to the pilot "compulsory mediation" program, which is supposed to begin operating soon in the Magistrate's Courts, in Tel Aviv, Rishon Letzion and Jerusalem, and will continue for two years. In the face of insufficient applicants by the beginning of November, the tender was extended to December 13. The administration seeks a a high-quality team of mediators to change the present status of mediation, which is unfortunately negligible, in the context of alternative methods of conflict solution.

Judge Michal Rubinstein, the vice president of the Tel Aviv District Court, heads the project. "Mediation has caught on," she says, "but not sufficiently. Partly because of the level of the mediators, and partly because people are not sufficiently exposed to the idea. Nor are the lawyers always interested in mediation procedures. But there are mediators who do very good work, and we are now simply trying to institutionalize this tool and to expand its use."

Unlike arbitration - an official, legal procedure in which an arbitrator imposes a solution on the parties - transferring legal conflicts to mediation depends on the goodwill of both parties: The mediator does not have the authority to make a decision, and the purpose is to get the parties to find a solution by non-legal means.

"Mediation, which is based on the principle of consent, reflects a worldview that favors rapprochement and tolerance," said the report of the committee that was headed by Rubinstein and was published about a year and a half ago.

The report dealt with increasing the use of mediation in place of lawsuits and proposed obligating the parties in civil suit up to NIS 50,000 to hold a "Mahut" meeting (a Hebrew acronym for Information, Introduction and Coordination) with a mediator. At this meeting, for which the parties will not have to pay, they will examine the possibility of transferring the legal conflict to mediation processes. If they refuse, the case will continue to be handled in court.

The committee recommended a method that falls between compulsory mediation and continuing the present situation. "We believe this is a good method, but it will take time for people to understand that," says Rubinstein. "I would expect good mediators to take part in the program, even if it's partly volunteer for them. It's really a one-time opportunity." The volunteer aspect that Rubinstein is talking about is apparently the reason for the small number of applicants: The committee's recommendation expects them to bear the costs of the Mahut meeting, and that has aroused considerable resentment.

"I expect the mediators to cooperate," says Rubinstein. "There are 4,000 mediators in the court system, and they should be the ones most interested in this project, which is prestigious and important. The core of the committee's work was the conclusion that we won't be able to make mediation compulsory, we won't be able to force the parties to pay, and we don't have a budget in the court system to fund it. That's why we thought that the principle of cast your bread upon the waters is something that the mediators should understand. They have to understand that although they are investing an hour without financial compensation, if the project succeeds, they will come out ahead in the end."

Do you think it's right that the courts are volunteering the mediators to work free of charge?

Rubinstein: "The Mahut meeting is the heart of the program. In the future we may require compulsory mediation, maybe we'll use other methods that are common the world over, but I really don't think that's the problem. If the pilot succeeds, the flag of mediation will be raised, if it fails, we are in effect shelving the issue and nobody is interested in that. It's not only a matter of a problem in the courts, it's an educational message."

He ain't heavy, he's my brother

If a criminal defense attorney applied unfair pressure on his client to confess to committing a crime, does that constitute justification for the plaintiff to retract his confession? The Supreme Court agreed in a rare decision this week to overturn the conviction of a man accused of murder and allowed the accused to retract his confession.

Three years ago, in a plea bargain, the Jerusalem District Court convicted the brothers Amjad and Hussam Dana of Silwan of the crimes of murder and accessory to murder in the killing of their cousin, Alaa Abu Taya, during an arguement. Amjad stabbed the victim in his heart and another 38 times in his stomach.

The two brothers were originally both charged with murder and were represented by attorney Menachem Blum. As a result of the plea bargain, the accusation against Hussam was changed to accessory to murder only, and he was sentenced to 14 years in prison. In the appeal to the Supreme Court Amjad Dana claimed he had confessed to the murder against his will, due to psychological pressure. He was under emotional stress, he said, because of the choice offered, in which if he confessed to the murder, he would help his brother. He says he would not have agreed to confess to murder had his brother not been involved in the plea bargain. The person who placed the heaviest pressure on him, claimed Amjad, was his lawyer, who represented his brother as well.

As part of the appeal proceedings, in which Blum was no longer representing the brothers, a letter from him was submitted to the court. "Very incriminating evidentiary material had accumulated against each of them," wrote Blum regarding his former clients, "and if the case had gone to court without the plea bargain, both would have been convicted of murder." He says the negotiations for the plea bargain were conducted with the knowledge and consent of his two clients. "I tried to convince them that this was the only way that would be somewhat helpful for one of them, and for the entire family. I believe that Hussam also convinced Amjad to accept the plea bargain," he wrote.

"The accused's retraction of his confession requires the permission of the court and this permission is dependent on special reasons," wrote Supreme Court Justice David Cheshin, in the ruling. "The fact that the accused has changed his mind is not in itself a special reason, and the accused will be permitted to retract his confession only in exceptional circumstances. The claims against the accused man's legal representation are likely to constitute such "special reasons," for example in a situation where the defense attorney acted in breach of confidence vis-a-vis his client, while being motivated by extraneous considerations. However, a defense attorney's recommendation to the accused to confess, because otherwise he can expect a more severe punishment, does not justify retracting the confession. This rule is self-evident: If that were not the law, any accused who confessed could retract his confession, claiming that his attorney had threatened him that if he didn't confess, he would receive a more severe punishment.

This time, however, the court decided to accede to Amjad's request to retract his confession, and to acquit him. "The way in which he was represented is very problematic," wrote the justices. "By nature, co-representation carries a risk of conflict of interest, which is liable to harm each of the accused and to detract from their defense. In the case before us the conflict of interest contributed to undermining Amjad's representation. The justification in this case for allowing Amjad to retract his confession derives form the extraneous interest involved in Blum's recommendation to Amjad, which was designed to lead to a more lenient punishment for Hussam. The dual representation of the two brothers by the same attorney created an improper legal situation."