ADR Prior to the Issue of Proceedings

Abstract This chapter addresses the use of alternative dispute resolution (ADR) prior to the issue of proceedings. The consideration of ADR options as soon as possible in a civil dispute is key to securing greatest benefit from the use of ADR, and an approach that envisages settlement may prevent the escalation of the dispute. The Practice Direction Pre-Action Conduct and Protocols was revised in 2015 to increase the focus on ADR, aiming to enable the parties to understand each other’s position, and to settle the issue between them without the need to start proceedings, and further strengthening is being proposed. Proceedings should only be issued as a last resort, and not normally while ADR is being actively explored, or as a purely mechanical step. Pre-action consideration of ADR will inevitably be shaped by the possible implications if proceedings are issued, and the courts are taking an increasingly strict view of what is expected and evidence required. An existing contractual agreement may provide for the immediate use of ADR, specifying a particular ADR process to be used, or steps that need to be undertaken before litigation can be commenced. If necessary, such a clause will be enforced by a court.