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How Proposal 67 should be implemented
Implementation of Proposal 67 is envisaged as follows :-
(a)
Steps should be taken by the Judiciary in conjunction with institutions providing
mediation and other ADR services to give litigants more information and
assistance regarding use of existing mediation facilities as an alternative to
proceedings in court. All litigants should, for instance, be asked whether they
have considered mediation or other forms of ADR and, particularly in the case
of unrepresented litigants, whether they wish to receive information about such
processes, following this up where the response is positive.
(b)
Consultations should be started by the judiciary with interested institutions to
establish the suitability of such institutions for recommendation under the
proposed rules. Steps should be taken to ascertain, for instance, what services
and facilities could be made available and at what cost, and whether the rules,
management structure and ethical standards adopted by each institution under
consideration are appropriate.
(c)
Rules of court bearing on costs consequences should be made enabling parties
to proceedings to serve on the other party or parties a notice in a prescribed
form requesting mediation, or to apply to the court for a mediation
recommendation by the court. The court should also have power to recommend
mediation of its own motion.
(d)
Where a notice has been served or a recommendation made, a refusal or failure
to attempt mediation should expose the party in question to the risk of an
adverse costs order at the conclusion of the court proceedings.
(e)
Where the parties do wish to attempt mediation, the court should, so far as
possible, ensure that the timetable for the proceedings accommodates the
mediation process and enables them to avoid incurring unnecessary parallel
costs.
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