A pre-trial checklist is too late for ADR, says Simon Davis. Simon Davis is a partner in the litigation department at Clifford Chance.

The use of ADR in this country over the past few years has met with some success. The High Court now requires solicitors to certify in a pre-trial checklist that the possibility of ADR has been considered with their clients.

But is this too late to begin looking at ADR?

At this point, substantial legal costs will have been incurred and management energies have been spent; large amounts of court time and personnel have been employed and the trial is just round the corner.

Including a direction relating to ADR in a pre-trial check list will be insufficient on its own to reduce the burdens to clients and the courts.

Lord Justice Woolf in his interim report wants judges to be more interventionist. Woolf's direction does not go far enough. Judges should do more than just intervene to see that a case runs smoothly.

Approximately 90 per cent of cases settle without a trial. With this figure in mind part of the role of the case managing judge should be to encourage settlement at early stages in the litigation process, not just shortly before trial.

I am not suggesting that judges should highlight the strengths and weaknesses in parties' cases in open court or even in chambers. This would compromise their vital neutrality. But concerns about neutrality should not require judges to close their eyes to the possibility of an early settlement.

The issue of settlement, including the possibility of ADR, should be raised by the judge at the earliest possible stage, even in the first case conference. If as Lord Justice Woolf envisages, the clients are present, the judge can ensure that the nettle of settlement is grasped firmly at the outset of the litigation process.

Having the question of settlement/ADR raised by the judge eliminates the problems of settlement overtures by one side being regarded as a weakness and might prevent cases progressing unnecessarily far down the trial path.