Courts of Conciliation

“ A poor settlement is better than a fat judgment.”&emdash;Norwegian Saw.

MOST people consider multitudinous litigation a curse, and would welcome a reform promising relief from this growing evil. The court of conciliation in

Norway and Denmark, an institution inherited from the last century, was established to provide such relief, and has more than fulfilled the expectation of its creator. To give a brief outline of this unique and admirable institution is the object of this paper. But, first, it may be well to inquire whether such innovations really promote a healthy growth of the complex organism of law and justice.

There are men of high intelligence and profound learning (and they are not all lawyers, either) who look upon a litigant as a benefactor to society. In his interesting paper on Der Kampf um’s Recht, Dr. Rudolph Ihring, the wellknown Austrian authority on the philosophy of law takes the view that unyielding tenacity in maintaining one’s rights is the main element of strength of character in individuals as well as in nations.

It makes no difference whether the particular rights involved are equitable or not, nor does it matter whether they are important or unimportant. The essential thing is to maintain them at all hazards, at any cost, and in spite of any remonstrances of the heart. In this trait of character Dr. Hiring finds the source of England’s greatness, as the rigor of the Twelve Tables formed the solid foundation of the Roman Empire.

But this fundamental truth, he avers, is not generally appreciated. There is scarcely a trace of it in the domain of fiction. The great romancers and dramatists of the world abhor the pugnacious litigant. To them a man who stands uncompromisingly upon his rights is an incarnation of cruelty, a monster with a heart of stone which never throbbed with tender feelings of mercy and compassion. In the whole galaxy of typical dramatic characters there is but one notable exception, — Shy lock. According to Hiring, Shylock is not a type of monstrous greed and base, cruel revenge, but an incarnation of the sacred principles of law and justice. His impassioned pleading for his pound of flesh, in the great court scene, the learned German characterizes as lofty and sublime. The sacredness of law, as the foundation of human society, has never, he maintains, been pictured in more glowing terms nor stated with more overwhelming force than in the following immortal lines : —

Undeniably, there are clear lines of truth in this strong picture. Law is the final result of an endless series of battles for individual rights concerning every relation between men and men. Mankind was born without any rights save those of might, and its evolution from barbarism is a continuous process of differentiation and specification of rights and duties. This bloodless yet fierce struggle is the mould in which the principles of justice have been cast and recast. Hence, Dr. Ihring argues, litigation is necessary and a blessing. It keeps the fountain of justice fresh and flowing. For this reason every incipient legal controversy should be carried into court.

While the force of this argument may be admitted, it offers no comfort to crowded courts, overworked judges, or parties waiting for adjudication of highly important controversies. The plain, common-sense view of the matter is that the courts are loaded down with inconsequential litigation which should be kept out of court, as its only and inevitable effect is to keep in abeyance important questions pressing for consideration, and to furnish cheap lawyers with employment. To relieve the courts from this drudgery, without depriving the people of their rights to obtain legal redress for legal wrongs, be they ever so insignificant, is the object of the court of conciliation in Norway and Denmark. It has served its purpose so well that it has become the most popular tribunal in each country. The following is a reasonably full outline of the main features of this institution as it exists in Norway: — Every city, every village containing at least twenty families, and every parish constitutes a separate “ district of conciliation. The districts are small in order to make it as easy as possible for the parties to attend the court, as personal attendance is the main feature of the proceedings. The court, or commission, as the statute styles it, is made up of two members, one of whom acts as chairman and clerk. These officials are chosen for a term of three years, at a special election, by the voters of the district, from among three men nominated by the city or parish council. Only men above twenty-five years of age are eligible, and the law expressly provides that only “good men” maybe placed in nomination. The court meets at a certain place, day, and hour, every week in the cities, and every month in the country districts. It, is not public. The proceedings are carried on with closed doors, and the commissioners are bound to secrecy. Nothing of what transpires is permitted to reach the outside world. Admissions or concessions made by one party cannot be used against him by his adversary, if the case should come to trial in the regular courts. But a party willing to settle before the commissioners is entitled to their certificate to that effect.

The court of conciliation has jurisdiction in all civil or private cases. Appearance before the commissioners is compulsory in all such cases, and the first step in a proceeding. The law court will dismiss, ex officio, every case of this class that does not come up to it from the court of conciliation with a certificate of the commissioners attesting that an effort at a reconciliation of the parties has been duly made before them. In cases coming under the jurisdiction of police, admiralty, military, and ecclesiastical courts, and in a few others, appearance before the board of conciliation is not compulsory. In such instances a process of conciliation is the first step in the law court; but it is merely an empty formality.

The mode of procedure in the peace court is as simple as it could possibly be. The plaintiff states his case in writing, reciting in plain, every-day language the facts upon which he bases his complaint, and what he wants the defendant to do or refrain from doing, and requesting that the latter be cited to meet the plaintiff in the court of conciliation to try to reach an agreement in the manner prescribed by law. The senior commissioner writes the court’s summons upon the complaint, citing both parties to appear at its next or second sitting, as the case may be. A fee of twenty-five cents is charged tor issuing the summons, to which is added fifty cents in the event a conciliation is effected. These comprise all the costs in this court, and also all that this court costs. The commissioners receive no other compensation than these small fees.

The litigants must appear in person, except in case of sickness or very pressing business engagements, when the use of a representative is allowed, provided, however, that he be not a practicing attorney. Lawyers are rigidly excluded from the court of conciliation, except of course when they attend in their own behalf. If a party fail to appear in person without good excuse, he will be adjudged to pay the costs in the law court even it he should win the case. This rigid rule was designed to induce personal attendance, and in practice has shown itself to be very effective. Either party may submit documentary evidence, and if the facts in a case are entangled with essential points in controversy a continuation may be granted with the consent of both parties. Rules and forms, however, play only a secondary part. The character and object of the court make it preëminently a forum of common sense unfettered by legal fictions and technicalities. The judges, or commissioners, discourage any attempts at legal wrangling by either party. They are selected with a particular view to their fitness as peacemakers. While not " learned in the law,” in the technical sense of the term, they have nevertheless a fair understanding of the fundamental principles of municipal law, and a keen sense of equity and material justice. The people regard the office as one of honor and trust rather than of emolument, and have always kept in view that in order to serve its purpose the high, non-partisan character of the institution must be maintained. In judging of the fitness of candidates they are far more exacting than the statute. Not satisfied with electing merely “ good men,” as the law requires, they pick the very best men in the community; men of mature years, who-have earned a reputation for intelligence. conservatism, and fairness in their dealings with their fellow-men* The office has been kept out of politics. Not even in times of great political excitement, when party lines were rigidly drawn and the regular courts were suspected of not being entirely free from political bias, has there been any complaint against these popular tribunals on this account. On entering upon their duties. the judges are sworn honestly and faithfully to strive to reconcile contestants appearing before them, according to their conscience and to their best judgment, on terms that are just and equitable to both parties and in harmony with the spirit of the law of the land. They are not required to be strict constructionists. Whenever a technical construction, in their judgment, would be inequitable to either of the litigants and obstruct an agreement, they will sacrifice the letter to the spirit of the law in their advice to the parties.

The very atmosphere of the lowly court room has a softening influence on those who enter it armed for a contest for legal rights. The judges are personally known to them, or are perhaps their friends, and are recognized as men in whose impartiality and integrity they can have implicit confidence. Even the humblest citizen feels that in this forum he treads upon firm and familiar ground. There are no intricate formalities to becloud the issue, no array of lawyers to confuse him, no crowd of curiosity-seekers to gloat over Ids discomfort. The judges and tlie contestants are the only ones present. Everything induces to an open, frank, and dispassionate discussion of the points at issue. Each party looks upon the commissioners as disinterested, trustworthy, and friendly counselors, who will give him only such advice as will subserve his best interests. He has no over-zealous counselor to play upon his prejudices or instincts of cupidity, or to arouse and nourish within his breast a false sense of pride. The situation is a powerful appeal to his better nature and his unbiased judgment. He is perfectly free from any legal restraint, as propositions or concessions which he may make in order to facilitate an adjustment will not prejudice his case if it should go to court. On the contrary, a conciliatory spirit will count in his favor in deciding the question of cost in the courts of law.

Any one in the least familiar with lawsuits knows that a large number of cases originate in trifling or imaginary wrongs. That is true not only of personal injury cases, but also of many other controversies. Most people are apt to exaggerate wrongs they have Suffered, and many are quick to see an intended injury in actions that are perfectly harmless, or at least not prompted by malice. Retaliation is frequently resorted to as a means of redress, and thus the accelerating pendulum of estrangement and aggression is set in motion. A slight cause, real or imaginary, results in strained relations or even a feeling of hostility between men, and there is always a lawyer at hand on either side, who knows how to add fuel to the flame by magnifying the wrongs, and promising certain relief and revenge if he is only allowed to take the case into court. To fight the case out in court becomes a matter not only of pecuniary gain, but also of personal pride, and before they know it men who have been good neighbors, perhaps friends, find themselves involved in costly litigation about insignificant differences that might have been adjusted in a few minutes of calm, unbiased discussion. It is needless to say that in such instances both both parties will lose in the end. The amount in controversy, or more, is eaten up generally in fees, and the litigants leave court out of money, and often enemies for life.

The influence of the court of conciliation is brought to bear upon a legal controversy while it is yet possible to bridge the chasm by peaceable means. The injured party has made up his mind to seek redress, but before he can rush into court he must pass through the gate of peace. Here the contestants meet without lawyers to spur them on and obscure the issue by legal verbiage. Each tells his own story in his own language, and in a plain, common-sense way. With the statements of both parties before them, the judges reduce the differences to their true proportions, emphasize the uncertainty and expensiveness of litigation, and endeavor to make it plain to the contestants that each, by a comparatively insignificant concession, can have the matter adjusted at once, save a large amount in court’s and lawyer’s fees, and in fact gain more than he would obtain even if successful in court.

Men generally listen willingly to -this kind of talk. Their own better judgment responds to this homely logic. The controversy is lifted out of the sphere of prejudice and bias, and each feels that reasonable and sensible concessions do not humiliate him in the estimation of his friends and neighbors. It has come to be considered more creditable to return from such a meeting as friends than to carry the matter into court. In three cases out of four the contestants conclude that " a poor settlement is better than a fat judgment.” The agreement of settlement is recorded and can be enforced the same as a final judgment. Thus, the institution not only prevents needless, inconsequential litigation, but also serves the purpose of furnishing speedy justice. The controversies that are disposed of in this quick and inexpensive way are of such a nature that they ought to be adjusted without the intervention of the courts, which are thus left free to devote all their time to really important litigation. The experience in Norway is that only twenty-five per cent of all civil cases that arise involve questions which are of such importance that it is considered best by either of the parties to bring them before the district court for adjudication, while seventy-five out of every hundred cases are peaceably adjusted in the courts of conciliation.

As already mentioned, the institution is a heritage from the absolute monarchy, the royal edicts establishing it dating back to the years 1795 and 1797. It had its origin in the king’s “ fatherly solicitude for the welfare of his poor ignorant peasant subjects.” " Inasmuch as it has come to our notice,” the royal lawmaker says in the preamble to his ordinance, ” that peasants and other lowly good and true subjects in our dominions are incited to quarrel about trifling things by dishonest lawyers, who generally keep their clutches on their unsuspecting clients till they have sobbed them of all their property, we have, in our fatherly wisdom and for the protection of our loyal subjects, evolved a reform of the law of procedure designed to abate and check the monstrous evil.” Then follows the body of the ordinance establishing the new institution.

A more popular or beneficent law was scarcely ever promulgated by a kingly autocrat. The new institution worked well from the start, and became popular at once with all classes of the people, excepting, of course, legal " shysters ’ and greedy pettifoggers, who found their occupation gone. The opposition of the bar ceased entirely with the weeding out of the disreputable element from the profession.

To the people the reform brought not only a sorely needed remedy for a growing evil, but also a lesson in popular government. The new institution was at the same time a semi-revival of their ancient system of administering justice and a harbinger of the new era of liberty. When they had established free governments, Norway and Denmark both recast their systems of law so as to make them conform to the spirit of their constitutions. But this institution was not only left intact ; it has been strengthened and perfected from time to time. In Norway it is regarded as one of the corner stones of the national system of justice, and it is not an exaggeration to say that any attempt to abolish it would provoke a revolution. The more recent Norwegian legislation on the subject has conferred larger powers upon these courts, and the indications are that further steps will he taken in the same direction. In addition to their function as conciliators, they are now empowered to arbitrate and adjudicate controversies brought before them. If the parties to a case fail to agree, they can request the commissioners to act as arbitrators in the matter; or, if the case is one for recovering a debt, it can be submitted to their decision in their capacity as judges proper.

The institution has stood the test of a century, and has grown stronger from year to year. Conceived in the parental care of a well-meaning absolutism, it has received the enthusiastic sanction of two free nations. It is without a counterpart in the whole history of law. Legislators of all times have discouraged frivolous litigation; but nothing more simple, more symmetrical, or more effective has ever been devised as a preventive for this evil. It is as true in law as in medical science that prevention is better than cure. While checking litigation and dispensing speedy and inexpensive justice, the courts of conciliation save to the people an immense amount of fees, relieve the pressure upon the regular courts, reduce the ranks of lawyers to the number actually needed for the trial of cases worth trying, prevent hasty and groundless ruptures of bonds of friendship, and cultivate among the people a broad, liberal spirit of fair dealing and proper regard for the equitable rights of others.

Nicolay Grevstad.