- Title
- Civil dispute resolution obligations: what is reasonable?
- Creator
- Sourdin, Tania
- Relation
- University of New South Wales Law Journal Vol. 35, Issue 3, p. 889-913
- Relation
- http://www.unswlawjournal.unsw.edu.au/issue/volume-35-no-3
- Publisher
- University of New South Wales, Faculty of Law
- Resource Type
- journal article
- Date
- 2012
- Description
- Pre-action requirements specify that disputants take steps or use dispute resolution processes to attempt to resolve their dispute before commencing litigation. These types of requirements have been introduced in a range of jurisdictions within and outside Australia in recent years. They may arise as a result of agreements to enter into alternative dispute resolution (‘ADR’) processes, legislative arrangements, regulatory schemes as well as through court or non-court protocols and guidelines. For example, some pre-action protocols require disputants to engage in ADR, or consider using ADR, as a precondition to commencing legal proceedings. Others require that ‘would-be’ litigants take steps or file a statement about what they have done to resolve their dispute if they are unable to resolve it and then commence court or tribunal proceedings. Most pre-action requirements have ‘opt-out’ provisions. For example, certain categories of litigants are not required to comply with some types of pre-action obligations and requirements if there is urgency or violence, or the category of cases is exempt for some other reason (for example, certain uncontested debt recovery and corporations winding up matters). The reasons for introducing pre-action protocols and obligations include that, by focusing on earlier dispute resolution, time and cost can be saved and a better outcome may be achieved. In this regard, there is a concern that commencing adversarial court proceedings can lead to the destruction of existing business and other relationships, and the polarising of disputant positions can limit the options available to resolve the dispute.
- Subject
- civil disputes; pre-action obligations; dispute resolution processes; litigation
- Identifier
- http://hdl.handle.net/1959.13/1356432
- Identifier
- uon:31707
- Identifier
- ISSN:0313-0096
- Language
- eng
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