LLB40703

ADVISING CLIENTS ON ADR

CONTENTS

1. Introduction
2. Duty to advise
3. When the duty arises?
4. Conclusion

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 Introduction

§ Learning outcomes: Students are able to:

1. Comprehend the existence of the duty to advise;
2. Know when the duty arises.

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Duty to advise
Meaning :
§ A lawyer is obliged to advise his client to
settle dispute without having to go to
the court.
§ Duty as an officer of the court : R15
§ Duty to safeguard clients’ interest
§ Conflict of duties?

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 Sources of Duty to advise
1. Legal Profession (Practice And
Etiquette) Rules 1978
2. Rules of Court 2012
3. Practice Direction No. 4 / 2016

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A: LEGAL PROFESSION (PRACTICE AND ETIQUETTE) RULES 1978

§ Rule 16. Advocate and solicitor to uphold interest of

client, justice and dignity of profession.
ú An advocate and solicitor shall while acting with all due
courtesy to the tribunal before which he is appearing, fearlessly
uphold the interest of his client, the interest of justice and
dignity of the profession without regard to any unpleasant
consequences either to himself or to any other person.

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 A: LEGAL PROFESSION (PRACTICE AND ETIQUETTE) RULES 1978

§ Rule 12. Advocate and solicitor not to

conduct civil case intended to delay
proceedings etc.
ú An advocate and solicitor shall not conduct
a civil case or make a defence which is
intended merely to delay proceedings or to
harass or injure the opposite party or to
work oppression or wrong.

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A: LEGAL PROFESSION (PRACTICE AND ETIQUETTE) RULES 1978

§ Rule 43. Advocate and solicitor not to

stir up strife and litigation.
ú No advocate and solicitor shall volunteer
advice to bring an action or to stir up
strife and litigation.

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 B: Rules of Court (RC) 2012
§ O34
ú At case management : Interlocutory stage:
ú R1(1)(b) Court may make ... “such directions may be given as
to the future course of the action as appear best adapted to
secure the just, expeditious and economical disposal thereof.”
ú R1(2) Court in exercising its powers under R1 may refer to any
Practice Direction in force.
Mediation Practice Direction No. 4 of 2016
ú R1(3) Effect of non-compliance: dismissal of action / striking out of
D or CC / proper orders.

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B: Rules of Court (RC) 2012

§ At case management : anytime before
trial
ú Court may direct on “mediation in accordance
with any practice direction for the time being
issued ..” R2(2)(a)
ú If the parties are agreeable to a settlement of
some or all of the matters in dispute in the
action or proceedings, the Court may enter
judgment in the action or proceedings or
make such order to give effect to the
settlement. R2(5)

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 C:Practice Direction No. 4 of 2016
§ Effective Date:
ú 15/07/2016
§ Objective of the Practice Direction
ú 2.1: to encourage parties to arrive at an amicable settlement
without going through or completing a trial or appeal.
§ Mediation, the only way?
ú 2.2: This PD is just a guideline. The Judge and the parties may
suggest or introduce any other modes of settlements if they so
agree.
§ Duty of lawyers
ú 2.3: shall cooperate and assist their clients in resolving the dispute
in a conciliatory and amicable manner.

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C:Practice Direction No. 4 of 2016

§ 3. When to suggest?
ú 3.1: at the pre-trial case management or at any stage, whether prior
to, or even after a trial has commenced. It can even be suggested at
the appeal stage.
§ 4. Types of cases
i. Claims for personal injuries and other damages due to road
accidents or any other tortuous acts because they are basically
monetary claims;
ii. Claims for defamation;
iii. Matrimonial disputes;
iv. Commercial disputes;
v. Contractual disputes; and
vi. Intellectual Property cases.

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 C:Practice Direction No. 4 of 2016
§ 5. Modes of mediation
i. Judge-led mediation;
ii. AIAC; or
iii. a mediator agreeable by both parties.
Role of a judge
§ 5.2 : If a Judge is able to identify issues that may be amicably
resolved, he should highlight those issues to the parties and
suggest how those issues may be resolved.
§ 5.3 : The Judge can request to meet in his chamber in the
presence of their counsel, and suggest mediation to the parties.
If they agree to the mediation then the parties will be asked to
decide whether they would wish the mediation to be the judge-
led or to be referred to other mediator.
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C:Practice Direction No. 4 of 2016

6. General matters
§ 6.1 Agreement to Mediate
ú If the parties agree to mediate, each of the parties shall complete a
mediation agreement.
§ 6.2 : Confidentiality
§ All disclosures, admissions and communications made under a
mediation session are strictly 'without prejudice'.
§ Such communications do not form part of any record and the
mediator shall not be compelled to divulge such records or testify as
a witness or consultant in any judicial proceeding, unless all parties
to both the Court proceedings and the mediation proceedings
consent to its conclusion in the record or to its other use.

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 C:Practice Direction No. 4 of 2016
6.3 : Results of Mediation
ú A return date of not more than one (1) month from the
date the case is referred to mediation, shall be fixed for
parties to report to the Court on the progress of
mediation;
ú and in the event the mediation process has ended, the
outcome of such mediation.
§ Except with the agreement of the Court, all
mediation must be completed not later than 3
months from the date the case is referred for
mediation.
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C:Practice Direction No. 4 of 2016

§ If the mediation is successful, the Judge
mediating shall record a consent
judgment on the terms as agreed by the
parties.
§ Failure to settle, dispute goes on trial.

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 When to advise?
PD 4/2016; para 3:
§ Before filing the case
§ After filing the case, before trial
§ Any time before trial: pre-trial
management stage
§ Anytime before the appeal

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Conclusion
§ Duty to advise on ADR can be implied
from statutes: RC 2012 & LP(PE)R
§ ADR can be resorted to at any stage of
court proceedings.
§ Effects on non-compliance with the court
order for mediation / ADR modes.
§ Mediation / ADR processes have become
significant in dispute resolution.

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 Additional References
§ Rules of Court 2012
§ Legal Profession (Practice And Etiquette)
Rules 1978
§ Practice Direction 4/2016

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