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Proposal 66
Legislation should be introduced giving the Director of Legal Aid power to make resort to
ADR a condition of granting legal aid in appropriate types of cases.
The Legal Aid Department should have power in suitable cases, subject to further study by
the Administration and consultation with all interested institutions and parties on the
development and promulgation of the detailed rules for the implementation of the scheme, to
limit its initial funding of persons who qualify for legal aid to the funding of mediation,
alongside its power to fund court proceedings where mediation is inappropriate and where
mediation has failed.
Proposal 64
A rule should be adopted conferring a discretionary power on the judge to require parties to
resort to a stated mode or modes of ADR, staying the proceedings in the meantime.
Proposal 64 (for giving the court power to order the parties to engage in mediation) should
not be adopted at present.
Proposal 67
Rules should be adopted making it clear that where ADR is voluntary, an unreasonable
refusal of ADR or uncooperativeness during the ADR process places the party guilty of the
unreasonable conduct at risk of a costs sanction.
In accordance with Proposal
67, subject to the adoption (after due consultation) of
appropriate rules, the court should have power, after taking into account all relevant
circumstances, to make adverse costs orders in cases where mediation has been unreasonably
refused after a party has served a notice requesting mediation on the other party or parties; or
after mediation has been recommended by the court on the application of a party or of its
own motion.
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