N s 37m1 fca act overarching purpose is to facilitate

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n S 37M(1) FCA Act: Overarching purpose is to facilitate the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible.
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Federal Civil Procedure   cont. n All participants in Fed Court (parties & their lawyers) are expected to observe the overarching purpose. n Court required to interpret court rules & exercise its powers in way best promotes the overarching purpose. n Judicial case management powers to be expanded by inclusion of examples of directions court can make (e.g. time limits; limit documents tendered in court etc).
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Case Management (CPA 2010) In accordance with overarching purpose, the court may give any direction or make any order it considers appropriate in the interests of the administration of justice or in the public interest (s. 47(1)). Sorts of case management orders that can be made (see ss. 47(2), 48, 49). Contravention of case management orders or directions: options (see s. 51). 17
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Introduction to ADR ADR: overarching term Why ADR? Limitations of litigation and negotiation in an adversarial context Litigation is not for everyone; range of legal and non- legal issues raised by disputes between parties The ‘shadow’ of litigation ADR and litigation: best to see as intertwined? 18
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Gladwell – ‘Confucian thought holds that going to court is a failure: a failure by the parties in not having regulated their conduct between, a failure in not being able to resolve their differences themselves and in having to resort to a third party to adjudicate. Recourse to law is something shameful. In death avoid hell; in life avoid the courts’. Two and a half millennia later, we in the West have begun to see the sense of that approach.’ (D Gladwell “ Modern Litigation Culture: The First Six Months of the Civil Justice Reforms in England and Wales” (2000) 19 CLJ 9)
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Limitations of litigation Unpredictability of outcome, and risk of unfavourable decision or enforcement Delay and costs Courts concerned with legal rights rather than durable solutions to disputes Parties’ relationships often irrevocably damaged
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Why litigate? McCabe Stingel v Clark Blackboard resources
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Differences between Litigation & ADR Flexibility Control by Parties Cost & Time Enforcement Relations hips
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Growth in ADR Growth since the 1970s Recognition that ‘winner takes all’ approach in litigation may adversely impact on parties’ relationship ADR mechanisms now incorporated into formal justice system in many ways (eg family law) Increased use of ADR: need research on quality of 23
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Types of ADR Processes Definitions: see National Alternative Dispute Resolution Council (NADRAC) paper (2009) Determinative processes: third party makes a determination Facilitative processes: third party helps to manage the process of dispute resolution 24
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ADR: Determinative Processes Adjudication Arbitration Expert determination Early neutral evaluation 25
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ADR: Facilitative Processes Conciliation Facilitation Mediation Ombudsman 26
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What is Arbitration?
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