ADR: REVISION

TOPIC 1: ADR & THE COURTS

Objectives:
Under Historical Background
Definition of ADR
Court Recognition of ADR
Approach of Civil Procedure Rules (CPR to ADR
!udicial "ncourage#ent of ADR
$anctions for Refusing ADR
HISTORICAL BACKGROUND TO ADR
199
%&&' ( for#er procedural rules (CCR ( Count) Court Rules and R$C ( Rules of $upre#e
Court for High Court Cases ackno*ledged ADR as potentiall) relevant to all civil actions
Positivel) encouraged ADR at pre+action stage and after litigation co##enced
$o#e Courts issued practice notes advocating use of ADR
1999 ! CPR "vi# $%%&' Re'%()s*
CPR ca#e into force in April %&&&
Put ADR at centre of ,ustice s)ste# for civil cases
"thos: -itigation as last resort
Contained rules encouraging ADR
$ince CPR ca#e into force ( ADR has developed. esp/ #ediation. "0" and "D/
+,,9 ! -#c.s%/ Revie0
-/! !ackson. 1Revie* of Civil -itigation Costs1 (issued: Dece#2er 344&
Reco##endation 5/6 ( ADR has a vital role to pla)/
$hould 2e serious ca#paign to ensure that all litigation la*)ers properl) infor#ed
a2out ho* ADR *orks and its 2enefits
G%ve(/)e/t P%siti%/
7ain proposals accepted 2) 8overn#ent in 7arch 34%%
8overn#ent polic) sho*ing increasing support for ADR ( 2elief that9 Access to justice for
all parties depends on costs being proportionate and unnecessary cases being deterred.
7arch 34%3: Proposal that all $#all Clai#s 2e referred to #ediation (though not co#pulsor)
the) are resolved 2) #ediation
Package of refor#s likel) to 2e i#ple#ented in April 34%6:
-egal Aid. $entencing and Punish#ent of :ffenders Act 34%3. Part 3 . and
A#end#ents to CPR
G(%0t1 %' ADR O2ti%/s
;irst $tatute: Ar2itration Act %5&<
;irst tri2unal to ad,udicate disputes ( $et up under 0ational =nsurance Act %&%%
%&<> ( 1Advisor). Conciliation and Ar2itration $ervice1 (ACA$ set up
8overn#ent funded
=ndependent. focus on supporting e#plo)#ent relationships
%&&4 ( 1Centre for "ffective Dispute Resolution1 (C"DR launched *ith support of the
Confederation of British =ndustr)/
$HAT IS 3ADR45
ADR does not have an agreed definition
?aken to cover alternatives to litigation *here:
?here is a dispute 2et*een 3@ parties
Dispute relates to civil rights andAor duties
Dispute could potentiall) go to court for resolution
Dispute resolved through another process *ith a #ore fleBi2le structure
Process is essentiall) confidential.
Process involves individuals other than parties. *ho add so#e degree of o2,ectivit)
(la*)ers andAor independentAneutral third part)
Dis#6v#/t#7es %' Liti7#ti%/
Civil procedure rules are co#pleB ( can eBtend ti#e and costs of resolving dispute
"Btensive rules of evidence and disclosure ( #a) 2e 2urdenso#e *here *ide+range of
relevant docu#ents or client concerned a2out confidentialit)
:2,ective of Courts to develop la* through precedent ( individual #a) not *ant to go to
C:A or $upre#e Court to resolve issue of la*/
Adversarial s)ste# ( not in parties1 interests if ongoing relationship
Detailed Court procedures ( #a) not 2e appropriate *here case turns on single technical
issue
!udge controlled ( #a) not suit clients *ho *ish to have control over outco#e
Past+focussed ( #a) 2e 2etter to take *ider conteBtual vie* of dispute. or focus on future/
Po*ers to :rder ( #a) 2e in client1s interests to have *ider+range of settle#ent options
e#2racing agree#ents *hich court cannot order/
COURT RECOGNITION O8 ADR
G(%0t1 i/ C%9(t:s Rec%7/iti%/ %' & S922%(t '%( ADR
Use of offers to settle encouraged in Calderbank v Calderbank C%&<5D
Eritten offer to settle could 2e 2rought to attention of ,udge *hen considering costs
;or#alised into Part 65 offers/
%&&F ( Co##ercial Court: 1Practice 0ote: Co##ercial Court9 Alternative Dispute Resolution1
ReGuires la*)ers to consider ADR *ith their clients
%&&> ( High Court: 1Practice 0ote: Civil -itigation9 Case 7anage#ent1
7ainl) provided for greater ,udicial control over cases
=ncluded Guestions on *hether la*)ers discussed ADR *ith client and other part)/
%&&< ( Holuntar) 7ediation $che#e attached to C:A
7arch 34%3 ( Announced pilot sche#e ( All C:A cases to 2e referred to #ediation
unless ,udge ordered other*ise/
%&&' ( Eoolf Refor#s ( CPR
"ncourage#ent of ADR 2uilt into ER. then eBpressl) and i#pliedl) into CPR
CPR eBpressl) encourages ADR prior to litigation
rFF/> ( Deter#ining *hether proceedings issued pre#aturel) (for costs ( have parties
consideredAused ADRI
Pre+Action Protocols (a#ended in 3446 ( -etter 2efore clai# should state if part)
*ishes to enter #ediation or other for# of ADR
344< ( Use of ADR standardised in Count) Courts
344' ( ;ull+ti#e #ediation officer in each area
Provides co##on and su2sidised #ediation procedure.
$upported 2) 0ational 7ediation Helpline and C7C (since 34%%
ENCOURAGE;ENT O8 ADR
S%9(ces %' E/c%9(#7e)e/t
Court 8uides
Pre+Action Protocols
Court1s inGuir) a2out parties1 useAconsideration of ADR at ?rack+Allocation $tage
Court *illingness to grant a sta) for considerationAuse of ADR
!udicial encourage#ent of ADR developed through case+la*
Eillingness of courts to upholdAenforce ADR clauses in contracts
CPR ! T1e Ove((i6i/7 Objective
r%/% (:verriding :2,ective ( =nc/ saving ti#e and eBpense. and proportionalit) in dealing
*ith cases/
!udges reGuired to further :verriding o2,ective in active case+#anage#ent
r%/6 ( Parties and la*)ers under dut) to assist court in furthering :verriding o2,ective
r%/F(%(a.(e.(f +
!udges should encourage parties to co+operate 2) using ADR
Court should facilitate use of ADR (eg/ sta)s. eBtensions of ti#e
!udges should help parties settle *hole or part of case
Case 7anage#ent :rers can direct parties to consider ADR and give reasons for failing
to use it/
r%/F(3 ( Active case+#anage#ent includes:
"ncouraging parties to use ADR if court considers it appropriate and facilitating its use
Helping parties to settle *holeApart of case
St#7es 01e/ ADR s1%9&6 be C%/si6e(e6
1< P(e=Iss9e
?o save ti#e and costs of litigation
Disadvantages:
=ssues not )et clearl) defined
7erits and Guantu# not easil) assessed
+< T(#c.=A&&%c#ti%/
"ach side1s case has 2een defined in state#ents of case
Disadvantages:
Disclosure not )et taken place. so difficult for accurate assess#ent of #erits
>< A'te( Disc&%s9(e
Accurate evaluation of case 2) 2oth sides
Disadvantages:
-arge a#ount of ti#e and costs all read) incurred
C%9(t G9i6es
Ad#iralt) J Co##ercial Courts ( $ection 8
8%/F ( "ncourages parties to consider ADR. reGuires la*)ers to consider ADR *ith
clients and other parties as #eans to resolving disputeAissues *ithin it/
8%/< ( Parties can appl) for court directions on ADR at an) stage (including 2efore
serving defence or 2efore case #anage#ent conference
Case 7anage#ent $heet ( K: Eould parties like an ADR :rder (AppendiB < ( =f court