The end of 'off-the-record' discussions? The new rules that will bring order to the court

The judicial system is taking another step to increase transparency in courtrooms, with the aim of regulating the phenomenon of discussions conducted without full documentation. In a comprehensive opinion published by retired judge Asher Cola, the ombudsman for complaints against judges, he establishes comprehensive rules regarding the management of court protocols - including, among other things, the documentation of proceedings conducted 'off the record', a very common procedure, but one that receives much criticism.

The central message is that the responsibility for managing protocols is not a technical requirement, but a duty whose purpose is to protect the rights of the parties, to maintain the appearance of justice, transparency, and public trust in the judicial system. The ombudsman emphasizes that the responsibility for recording the protocol lies with the court and not with the clerk or any of the parties. Alongside this, the ombudsman clarifies that it is possible to correct an error in the protocol, but the correction must be done through an orderly procedure. It was also determined that a heavy workload does not justify incomplete recording in the protocol, and that questions asked by the court must be documented. Likewise, unusual conduct in the courtroom, such as criticism of an attorney who is a party to the proceedings, must be documented.

The opinion, as mentioned, places emphasis on the common procedure of conducting discussions 'off the record', which raises fundamental questions such as whether the consent of the parties to conduct the discussion in such a way is sufficient, what the court is obligated to document, and how a protocol is corrected. Within the framework of the opinion, the ombudsman clarifies that it is better to reduce the practice of holding discussions 'off the record', when, for example, the parties want to turn to mediation or compromise.

New rules for managing protocols in hearings

Responsibility of the judge

The protocol is a substantive obligation to ensure transparency. Responsibility for it lies with the court, not the clerk.

Reducing 'off the record'

To prevent an 'evidentiary vacuum', it is mandatory to document the decision to go off the record, the consent of the parties, and the matters that preceded it.

Continuity in recordings

If the recording of the hearing was stopped, it is mandatory to document the main points of the conversation that took place outside immediately upon resuming the recording.

Compromise proposals

Do not detail the content of rejected proposals, but it is mandatory to document the very attempt at compromise and the court's explanations.

Small claims

In the absence of lawyers, waiving a protocol may be considered uninformed consent. Strict documentation of mediation and compromise proceedings is required.

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Preventing an evidentiary vacuum

The reason for this is the attempt to ensure that procedural conduct is reflected in the protocol fully and reliably, and in order to prevent a situation of an 'evidentiary vacuum' that could harm the ability to clarify in retrospect what happened in the hearing, as well as to increase transparency and public trust. It was also determined that if a decision is made to hold a discussion off the record, the decision, the consent of the parties, and the exchange of words that preceded it must be documented in the protocol itself.

It was further clarified in the opinion that 'off the record' does not mean outside the courtroom or without documentation at all, but at most a simplification of the method of recording, while the law still requires documenting the main points of what was said. The commission clarifies the requirement that holding a discussion off the record should only be done after receiving informed consent from the parties and while documenting their consent in the protocol.

Compromise attempts will also be documented

The opinion mentions the obligation to document (even within recorded hearings) the court's explanations to the parties regarding compromise proposals or possible costs that will be imposed on one of the parties, from the beginning of the hearing and in full. Regarding recorded hearings, it is clarified that if the court stops the recording and a discussion takes place off the record - upon resuming the recording, the main points that were not recorded must be documented.

It was also determined that the content of rejected compromise proposals should not be detailed in the protocols, but it is appropriate to note the fact of the existence of a compromise attempt, the court's proposal to end the procedure in a compromise, and the explanation given by the court within the framework of the compromise proposal. The compromise proposal can be detailed for memory preservation purposes if the parties are required to respond to it at a later date.

The commission attaches special importance to documenting hearings held in the absence of one of the parties. For example, the commission determines that a hearing held without the presence of a party (the woman) in the Rabbinical Court is a serious matter - and the fact that no protocol was prepared for the hearing constitutes, according to the ombudsman, a serious failure.

Regarding the Small Claims Court, where the legal procedure is conducted with flexible rules and in a less formal manner when the parties themselves are not represented by a lawyer, the commission insisted that it is important that the documentation be as complete as possible and that documentation should be expanded in this framework. It was determined that 'it is possible that the consent of the parties to not record a protocol, since they are not represented, is not informed consent'. Directing the parties in small claims proceedings by the judge to seek assistance from legal volunteers or the possibility of deciding the case by way of compromise must be accurately documented in the protocol.