ch 3-timing ADR in relation to progress of case

Question 1

when can ADR be used?

Answer 1

anytime from time cause of action arises to appeal or the assessment of costs

Question 2

cons of premature use of ADR?

Answer 2

waste time and money if issues are not sufficiently clear

Question 3

cons of using ADR too late>

Answer 3

parties have hardened and costs have grown to a level that threatens success of ADR

Question 4

when might ADR be pre-selected?

Answer 4

advance commitment in a contract

Question 5

what may a contract clause set out?

Answer 5

ADR method, body or person, steps aimed at resolution to take before using litigation

Question 6

will the court enforce a contract clause setting out ADR to be used?

Answer 6

yes provided it is sufficiently clear and contractually binding

Question 7

when have clauses providing for pre-selection ADR been effective?

Answer 7

adjudicative processes, steps prior to adjudicative process, expert determination and mediation

Question 8

6 advantages of pre=selecting ADR timing and steps?

Answer 8

easier to make an agreement,
control,
cost effective and timely dispute resolution,
certainty of how dispute can be settled (decreases chance of litigation),
a person or body can be identified in advance to conduct ADR,
easier to ensure confidentiality,
easier to maintain a constructive approach (avoids risk of dispute escalation)

Question 9

5 advantages of considering ADR at early stage of a dispute?

Answer 9

save time and money, adjudicative ADR ideal prior to litigation, some adj ADR is effective, clarify issues, constructive approach=parties less entrenched

Question 10

disadvantages of selecting ADR early?

Answer 10

waste of time and money if unsuccessful, unsuccessful ADR exacerbate dispute, difficult to evaluate case, some use ADR as tactic=not genuine

Question 11

what should parties do at the pre-issue stage?

Answer 11

consider and make or respond to a proposal for the use of ADR or record reasons why ADR was not appropriate

Question 12

what does pre-action requirements say as to ADR?

Answer 12

review position on ADR before issuing disputes

Question 13

when will position as to ADR need to be considered?

Answer 13

soon after issue in completing the Directions Questionnaire

Question 14

do case managements support or go against ADR?

Answer 14

support

Question 15

what does the directions questionnaire for small claims track do to encourage ADR?

Answer 15

provide guidance on trying to settle a case with info on Small Claims Mediation Service

Question 16

what does Directions Questionnaire Fast Track and Multi track do to encourage ADR?

Answer 16

states court will want to know what steps have been taken to settle

Question 17

obligation of legal representative with fast track and multi track?

Answer 17

confirm that SDR options and possibility of costs sanctions have been explained to the client

Question 18

when can a judge assess the appropriateness of ADR before further costs accrue?

Answer 18

on basis of statement of case, answers to questionnaire

Question 19

what will the court do on allocation to the multi-track?

Answer 19

give case management directions including directions on use of ADR

Question 20

what is it desirable for parties to do when submitting ptoposed directions?

Answer 20

include directions to enable mediation

Question 21

what made the importance of case management encouraging ADR clear?

Answer 21

Lord Justice Jackson’s Review of Costs