- Title
- Is the tail wagging the dog? Finding a place for ADR in pre-action processes: practice and perception
- Creator
- Sourdin, Tania; Castles, Margaret
- Relation
- Adelaide Law Review Vol. 41, Issue 2, p. 479-505
- Relation
- https://heinonline.org/HOL/Contents?handle=hein.journals/adelrev41&id=1&size=2&index=&collection=journals
- Publisher
- Elsevier
- Resource Type
- journal article
- Date
- 2021
- Description
- Alternative Dispute Resolution ('ADR') processes, particularly mediation, have been integrated into court and tribunal processes in various ways. Civil courts increasingly require parties to engage in pre-action dispute resolution protocols prior to the issue of proceedings. These initiatives take various forms, and have varying degrees of success. In 2018 the authors undertook an extensive evaluation of the impact of pre-action protocols in the South Australian Supreme and District Courts. This culminated in a report that has subsequently informed reform to the relevant pre-action processes in South Australia in 2020. This article develops a particular aspect of the inquiry: the impact that lawyers may have on the take-up and efficacy of mediation in a pre-action setting. It focusses on a less explored element of the pre-action ADR debate - the possible reasons for reluctance around pre-action engagement within the legal profession. The article concludes that there are a number of influences - systemic, preferential, and professional - relating to the timing, content, and nature of such processes, which have a significant impact on achieving change in this area.
- Subject
- dispute resolution; lawyers; courts; jurisdiction
- Identifier
- http://hdl.handle.net/1959.13/1433535
- Identifier
- uon:39277
- Identifier
- ISSN:0065-1915
- Language
- eng
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