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Adr And The Courts Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

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A more recent version of these Adr And The Courts notes – written by City Law School students – is available here.

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* 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.




"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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