This memorandum addresses issues concerning the early resolution of disputes by settlement, including the use of court-annexed alternative dispute resolution programs and judicial dispute resolution. The Committee has developed five core premises, identified a number of issues, and framed preliminary proposals. The Committee recommends that the Rules should “impose on all litigants a positive, early and continuing obligation to canvass settlement possibilities and to consider opportunities available to them to participate in non-binding dispute resolution processes.” The Committee recommends that the lawyer’s obligation to pursue settlement be incorporated into the Rules. Possible pre-action requirements and protocols outlining procedures after an action has been commenced would operate as incentives to govern what happens after the pleadings are filed. It is recommended that the current formal settlement Rules be retained with some modification and that judicial facilitation of settlement should be retained and continue to be openly flexible as it is now. The Committee also explores whether any of the settlement measures described should be tied to a particular litigation event or events. It identifies existing or prospective ties with six litigation events: commencement of the action; close of pleadings; filing the affidavits of records; close of discoveries; exchange of expert reports; and filing of certificate or readiness. Five reform options are identified: building settlement discussions into the litigation process; sharing information before, or shortly after, commencement of an action; building judicial conferences to explore settlement into the litigation process; making participation in a non-binding dispute resolution process a prerequisite to the next step in litigation; or choosing from a menu of settlement options.
Consultation Memoranda
Back to Publication SearchRules: Promoting Early Resolution of Disputes by Settlement, Consultation Memorandum 12.6
Resource Details
Publication No: | 12.06 |
FORMAT: | Publications |
TAGS: | Appeal, Court, evidence, Limitation, Practice, Rule, Service, Substantive, Validity |
FILE: | cm0126.pdf |