Adr And The Courts Notes

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 * Judicial Encouragement of ADR * Sanctions for Refusing ADR HISTORICAL BACKGROUND TO ADR 1998 * 1998 - former procedural rules (CCR - County Court Rules and RSC - Rules of Supreme Court for High Court Cases) acknowledged ADR as potentially relevant to all civil actions * Positively encouraged ADR at pre-action stage and after litigation commenced * Some Courts issued practice notes advocating use of ADR 1999 - CPR (via Woolf Reforms) * CPR came into force in April 1999 * Put ADR at centre of justice system for civil cases * Ethos: Litigation as last resort * Contained rules encouraging ADR * Since CPR came into force - ADR has developed, esp. mediation, ENE and ED. 2009 - Jackson Review * L.J Jackson, 'Review of Civil Litigation Costs' (issued: December 2009) * Recommendation 6.3 - ADR has a vital role to play. # Should be serious campaign to ensure that all litigation lawyers properly informed about how ADR works and its benefits Government Position * Main proposals accepted by Government in March 2011 * Government policy showing increasing support for ADR - belief that; "Access to justice for all parties depends on costs being proportionate and unnecessary cases being deterred." * March 2012: Proposal that all Small Claims be referred to mediation (though not compulsory they are resolved by mediation) * Package of reforms likely to be implemented in April 2013: * Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2 , and * Amendments to CPR Growth of ADR Options * First Statute: Arbitration Act 1697 * First tribunal to adjudicate disputes - Set up under National Insurance Act 1911 * 1975 - 'Advisory, Conciliation and Arbitration Service' (ACAS) set up * Government funded * Independent, focus on supporting employment relationships * 1990 - 'Centre for Effective Dispute Resolution' (CEDR) launched with support of the Confederation of British Industry. WHAT IS "ADR"? * * "ADR" does not have an agreed definition Taken to cover alternatives to litigation where: * There is a dispute between 2+ parties * Dispute relates to civil rights and/or duties * Dispute could potentially go to court for resolution * Dispute resolved through another process with a more flexible structure * Process is essentially confidential, * Process involves individuals other than parties, who add some degree of objectivity (lawyers and/or independent/neutral third party) Disadvantages of Litigation * Civil procedure rules are complex - can extend time and costs of resolving dispute * Extensive rules of evidence and disclosure - may be burdensome where wide-range of relevant documents or client concerned about confidentiality * Objective of Courts to develop law through precedent - individual may not want to go to COA or Supreme Court to resolve issue of law. * Adversarial system - not in parties' interests if ongoing relationship * Detailed Court procedures - may not be appropriate where case turns on single technical issue * Judge controlled - may not suit clients who wish to have control over outcome * Past-focussed - may be better to take wider contextual view of dispute, or focus on future. * Powers to Order - may be in client's interests to have wider-range of settlement options embracing agreements which court cannot order. COURT RECOGNITION OF ADR Growth in Court's Recognition of & Support for ADR * Use of offers to settle encouraged in Calderbank v Calderbank [1976] * Written offer to settle could be brought to attention of judge when considering costs * Formalised into Part 36 offers. * 1994 - Commercial Court: 'Practice Note: Commercial Court; Alternative Dispute Resolution' * Requires lawyers to consider ADR with their clients * 1995 - High Court: 'Practice Note: Civil Litigation; Case Management' * Mainly provided for greater judicial control over cases * Included questions on whether lawyers discussed ADR with client and other party. * 1997 - Voluntary Mediation Scheme attached to COA * March 2012 - Announced pilot scheme - All COA cases to be referred to mediation unless judge ordered otherwise. * 1998 - Woolf Reforms - CPR * Encouragement of ADR built into WR, then expressly and impliedly into CPR * CPR expressly encourages ADR prior to litigation * r44.5 - Determining whether proceedings issued prematurely (for costs) - have parties considered/used ADR? * Pre-Action Protocols (amended in 2003) - Letter before claim should state if party wishes to enter mediation or other form of ADR * 2007 - Use of ADR standardised in County Courts * 2008 - Full-time mediation officer in each area * Provides common and subsidised mediation procedure, * Supported by National Mediation Helpline and CMC (since 2011) ENCOURAGEMENT OF ADR Sources of Encouragement * Court Guides * Pre-Action Protocols * Court's inquiry about parties' use/consideration of ADR at Track-Allocation Stage * Court willingness to grant a stay for consideration/use of ADR * Judicial encouragement of ADR developed through case-law * Willingness of courts to uphold/enforce ADR clauses in contracts CPR - The Overriding Objective * r1.1 (Overriding Objective) - Inc. saving time and expense, and proportionality in dealing with cases. * Judges required to further Overriding objective in active case-management * r1.3 - Parties and lawyers under duty to assist court in furthering Overriding objective * r1.4(1)(a),(e),(f) * Judges should encourage parties to co-operate by using ADR * Court should facilitate use of ADR (eg. stays, extensions of time) * Judges should help parties settle "whole or part of case" * Case Management Orers can direct parties to consider ADR and give reasons for failing to use it. * r1.4(2) - Active case-management includes: * Encouraging parties to use ADR if court considers it appropriate and facilitating its use * Helping parties to settle whole/part of case Stages when ADR should be Considered 1. Pre-Issue * To save time and costs of litigation * Disadvantages: # Issues not yet clearly defined # Merits and quantum not easily assessed 2. Track-Allocation * Each side's case has been defined in statements of case * Disadvantages: # Disclosure not yet taken place, so difficult for accurate assessment of merits 3. After Disclosure * Accurate evaluation of case by both sides * Disadvantages: # Large amount of time and costs all ready incurred Court Guides Admiralty & Commercial Courts - Section G * G1.4 - Encourages parties to consider ADR, requires lawyers to consider ADR with clients and other parties as means to resolving dispute/issues within it. * G1.7 - Parties can apply for court directions on ADR at any stage (including before serving defence or before case management conference) * Case Management Sheet - Q: Would parties like an ADR Order (Appendix 7) - If court 

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