Pre Action Conduct ADR prior to issue of proceedings Flashcards
Settlement and ADR
Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.
Parties may negotiate to settle a dispute or may use a form of ADR including—
(a)mediation, a third party facilitating a resolution;
(b)arbitration, a third party deciding the dispute;
(c)early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d)Ombudsmen schemes.
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
Pre-Action Protocol for Personal Injury Claims
Alternative Dispute Resolution
Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of Alternative Dispute Resolution (“ADR”) might enable them to resolve their dispute without commencing proceedings.
Some of the options for resolving disputes without commencing proceedings are—
(a)discussions and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology);
(b)mediation, a third party facilitating a resolution;
(c)arbitration, a third party deciding the dispute; and
(d)early neutral evaluation, a third party giving an informed opinion on the dispute.
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR but unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings.
ADR where no proceedings have been issued
A revised version of the practise direction pre action conduct and protocols increases the focus of ADR aiming to enable the parties to understand each other’s position coma and to settle the issue between them without the need to start proceedings. There should be a final review before proceedings are issued to see if proceedings can be avoided or issues narrowed.
Proceedings should only be issued as a last resort coma and not normally while ADR is being actively explored, or as a purely mechanical step. While ADR is not compulsory specific options are set out with references to sources for further information. The parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started
