First engage fully in the particular process and

First of all, legislation could set out, possibly as exceptions to inadmissibility provisions, examples of conduct that is not acceptable and in relation to which evidence will be admitted.

There are a few obvious examples such as violence, fraud and serious threats in relation to people or property. Besides, legislation should give judges a discretion in order to make appropriate orders with respect to the conduct of the parties in an ADR process to which they are ordered but taking into account relevant factors. For example, the capability of the parties to engage fully in the particular process and the desirability of protecting the confidentiality of the process so far as possible. Furthermore, if it is decided that there is value in utilizing general requirements like good faith and so forth. Then, consideration should be given on how to curb their harmful consequences. For instance, by requiring leave of the court before an application may be lodged for costs in relation to a breach of the standard. Additionally, judges should have the consideration and possibility to take evidence about what happened in a private and confidential ADR process in closed court.

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