Civil Dispute Resolution Obligations: What Is Reasonable?

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 (\u0027ADR\u0027) 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 \u0027would-be\u0027 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 \u0027opt-out\u0027 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).