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29.1
The Proposals
The Interim Report describes existing facilities for ADR in some detail. Parties to any
dispute can of course engage in ADR by agreement. What the Interim Report raises
for consultation is the extent to which ADR procedures, particularly mediation,
range of possibilities, involving varying modes and degrees of such integration into
the legal system, namely, schemes in which :-
(a)
a statutory rule makes ADR compulsory for particular types of cases;
(b)
the parties are directed by court order to engage in ADR;
(c)
ADR is made compulsory where one party elects for ADR;
(d)
legal aid is initially limited, making ADR a condition of any further legal aid;
(e)
an unreasonable refusal of ADR or uncooperativeness in the ADR process
provides a basis for making an adverse costs order; and,
(f)
the court's role is limited to encouraging and facilitating purely voluntary ADR.
The decision to canvass possible adoption of some form of court-annexed ADR was
inspired by the positive results reported by ADR (and particularly mediation) schemes
abroad. Current reports indicate that such schemes have increasingly become an
accepted feature of the civil justice system, enjoying impressive success rates.
Notes
For reasons given below, this Final Report focuses on mediation by a neutral aimed at assisting the
parties to arrive at a contractually binding settlement. This should however be understood to include,
where appropriate, the whole range of consensual ADR techniques referred to in the Interim Report:
see §§625, 627-628.
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