ch 3-timing ADR in relation to progress of case Flashcards
when can ADR be used?
anytime from time cause of action arises to appeal or the assessment of costs
cons of premature use of ADR?
waste time and money if issues are not sufficiently clear
cons of using ADR too late>
parties have hardened and costs have grown to a level that threatens success of ADR
when might ADR be pre-selected?
advance commitment in a contract
what may a contract clause set out?
ADR method, body or person, steps aimed at resolution to take before using litigation
will the court enforce a contract clause setting out ADR to be used?
yes provided it is sufficiently clear and contractually binding
when have clauses providing for pre-selection ADR been effective?
adjudicative processes, steps prior to adjudicative process, expert determination and mediation
6 advantages of pre=selecting ADR timing and steps?
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)
5 advantages of considering ADR at early stage of a dispute?
save time and money, adjudicative ADR ideal prior to litigation, some adj ADR is effective, clarify issues, constructive approach=parties less entrenched
disadvantages of selecting ADR early?
waste of time and money if unsuccessful, unsuccessful ADR exacerbate dispute, difficult to evaluate case, some use ADR as tactic=not genuine
what should parties do at the pre-issue stage?
consider and make or respond to a proposal for the use of ADR or record reasons why ADR was not appropriate
what does pre-action requirements say as to ADR?
review position on ADR before issuing disputes
when will position as to ADR need to be considered?
soon after issue in completing the Directions Questionnaire
do case managements support or go against ADR?
support
what does the directions questionnaire for small claims track do to encourage ADR?
provide guidance on trying to settle a case with info on Small Claims Mediation Service
what does Directions Questionnaire Fast Track and Multi track do to encourage ADR?
states court will want to know what steps have been taken to settle
obligation of legal representative with fast track and multi track?
confirm that SDR options and possibility of costs sanctions have been explained to the client
when can a judge assess the appropriateness of ADR before further costs accrue?
on basis of statement of case, answers to questionnaire
what will the court do on allocation to the multi-track?
give case management directions including directions on use of ADR
what is it desirable for parties to do when submitting ptoposed directions?
include directions to enable mediation
what made the importance of case management encouraging ADR clear?
Lord Justice Jackson’s Review of Costs
