“Problems in the Preliminary Discussion”

In a recent nine-page decision, the Tel Aviv District Court (Civil Case 14263-04-21, Judge Esther Nahlieli Hayat) examined an apparently minor procedural question hardly seeming to justify such length: the nature of the “preliminary discussion” and the parties’ duties. The court concluded that their report was so laconic and vague that it showed an exercise undertaken merely to discharge a formal obligation, not improve efficiency. It expected good faith and procedural fairness, openness and genuine willingness to agree with the other side and assist resolution of the dispute. Finding the parties’ conduct inadequate, it ordered costs payable to the state treasury!

What Is a “Preliminary Discussion,” and Why Was the Court Angry? As part of reforming the Civil Procedure Regulations, 5779–2018, regulations 34, 35 and 36⁽³⁾ require parties and their lawyers to hold a preliminary discussion without a judge before the first pretrial hearing. “The preliminary discussion aims to ensure that parties prepare thoroughly for the action and clarify the dispute through mutual disclosure and complete transparency, enabling proper preparation and consideration of alternative dispute resolution.” They must then file a joint written report identifying the date and participants, agreements reached, steps to narrow the dispute, the alternative mechanism proposed and when documents were exchanged, attaching copies.

In our view, these brief regulations are unclear. They do not specify where or how to meet, who must attend, how long to continue before giving up, what adequately responds to a settlement proposal or whether refusals require reasons.

The case involved apartment purchasers and a construction company disputing alleged defects they could not settle. Their report proposed a court-appointed expert to resolve technical issues under regulation 35(a)(3), the usual method in such cases. Nevertheless, the judge criticized the absence of agreements before the hearing and called the report “so laconic that it does not meet the requirements of the prescribed form.” She added: “Without goodwill from the parties, there is undoubtedly little prospect of significant agreements for efficient conduct of proceedings.”

We consider the criticism too harsh. Introducing preliminary discussions disrupts Israeli lawyers’ longstanding adversarial practice, in which opposing parties confront each other and a judge conducts proceedings and decides from the facts and arguments presented. Law faculties have taught this reasoning for decades; lawyers train in it during internships and refine their representation skills through years of difficult work. It is unclear why the legislature imposed a new system without preparation or training.

The regulations overlook claims where preliminary discussion cannot help, such as those requiring judicial interpretation of a statute or document. Had the parties agreed on interpretation, presumably they would not have gone to court.

Sometimes the lawyers, as well as the parties, are in conflict. How can lawyers hold a friendly preliminary discussion when they struggle even to exchange a “good morning”?

Lawyers may also fail to appreciate all legal implications, whether through overidentification with clients or inexperience. Many situations require the court’s experience and authority to guide parties who cannot themselves find a more efficient way forward.

The regulations do not require agreement. They require responses about “defining the issues”—as if pleadings had not done so—and consideration of agreed efficiency measures. What authorizes a court to treat agreement as obligatory? How can it criticize a discussion it did not attend when no minutes or minimum report length are required?

Is it too much to expect the absent court to respect the parties’ autonomy and accept their report without undermining lawyers’ dignity or threatening treasury costs?

Why should a litigant fear financial sanctions for failing to reach substantial procedural agreements? The parties have opposing interests; resolving preliminary and procedural differences is neither necessarily their role nor within their ability. That is why proceedings were brought.

Moreover, Israel and the Middle East have traditions respecting judges, religious judges, rabbis and sages. The many disputes brought to court reflect public esteem for the judiciary. Returning the ball to litigants may instead damage its respected image.

Israeli argument is not particularly polite: court corridors and courtrooms host forceful disputes and disrespectful speech. We believe most litigants are not yet able to debate independently, constructively, courteously and efficiently with full transparency before trial. A judge, arbitrator or preferably mediator is needed.

Early disclosure of litigation tactics is also inconsistent with prevailing practice. Requiring parties to reveal their examination strategy through excessively detailed clarification of every issue may be unfair. It unduly undermines the rule that the claimant bears the burden of proof: why must the defendant do the claimant’s work?

The judge sees the discussion as a way around “procedural skirmishing that leaves the case stuck in the corridor,” inappropriate in a factual construction-defect dispute. But is who caused the defect irrelevant? We cannot accept treating substantial factual disagreements as mere procedure or pointless proceedings for parties to resolve alone. The court went too far, relinquishing responsibility for managing the action and transferring it to lawyers, who may struggle to participate “willingly” without impairing their ethical duty of loyalty to clients.

The costs order and lengthy reasoning seem intended to educate, warn and deter the legal profession. We believe this will increase litigants’ frustration and dissatisfaction rather than improve efficiency.

A better approach would appoint MAHUT mediation-information meeting mediators to conduct and specialize in preliminary discussions. A neutral mediator can greatly improve efficiency even without resolving the entire dispute. Expanding mediation and MAHUT powers would streamline cases and save judicial time. Simultaneous procedural revolutions are difficult: the legislature should reconsider regulations 34–36 and merge preliminary discussions with MAHUT meetings, perhaps achieving two objectives at once.

 

(1) Managing partner, A. Shiloh & Co. Law Offices

(2) Law student, University of Haifa Faculty of Law

(3) Text of the Regulations:

“34. The parties shall hold a preliminary discussion under regulation 35, aimed at thorough preparation for the action and clarification of the dispute through mutual disclosure and complete transparency, enabling proper preparation and consideration of an alternative dispute-resolution mechanism.

35. (a) Within thirty days after service of the last pleading, parties other than unrepresented litigants shall hold a preliminary discussion addressing, among other things:

(1) Defining, focusing and potentially narrowing the disputed issues;

(2) The possibility of resolving the dispute through an alternative mechanism;

(3) If judicial proceedings cannot be avoided, at least the possibility of agreeing steps to narrow and streamline them as far as possible, including early examination of the subject of an expert opinion by the opposing party’s expert or appointment of an agreed expert.

(b) During the discussion, parties shall allow inspection of necessary documents and answer questions needed to clarify issues and narrow disagreements, acting with maximum transparency.

36. After the discussion, and no later than fourteen days before the first pretrial hearing, parties shall report using Form 4 in the First Schedule, attaching necessary documents presented during the discussion under regulation 35(b). If no joint report is agreed, each party shall file the form separately.”