As discussed in my article “Changes to family law rules to encourage Non Court Dispute Resolution” the Family Procedure Rules were updated last April, placing greater emphasis on alternatives to Court.
What is Non-Court Dispute Resolution (NCDR)?
NCDR is essentially any method of dispute resolution which does not involve the court. The definition of NCDR was widened to include, amongst other things, Mediation (including solicitor-supported mediation), Collaborative Family Law, Arbitration and Private Financial Dispute Resolution Hearings. There are other forms of NCDR, including round table meetings, early neutral evaluation or Resolution Together: One Couple One Lawyer.
All of the above options allow parties to resolve their family law disputes without recourse to the court. There are many benefits to avoiding court (not least the costs and the delays) and the rule change highlighted how important it is for all parties to try out of court options where possible, and to rely on the court as a last resort only.
The rules emphasised the court’s duty to consider whether NCDR is appropriate prior to and throughout the proceedings. It retains the power to adjourn proceedings and require parties to attend NCDR, and also to make costs orders against parties who unreasonably refuse to participate.
How is the Court enforcing the rule change?
With the rules having been in place for a few months, the Courts have been getting to grips with these issues in practice.
Adjourning Court Proceedings
Whilst the rule change did not go as far as compelling parties to engage in NCDR, the court can order an adjournment of proceedings to allow NCDR to take place without the parties’ consent. The court will examine any evidence presented as to why the parties say they are exempt and challenge appropriately.
The case of X v Y [2024] highlighted:
- It is the court’s “expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate”
The recent case of NA v LA [2024] EWFC 113 confirms that whilst there may have been good reason to start court proceedings (e.g. to obtain a freezing injunction), the court will still expect NCDR to be attempted once the urgent issue has been dealt with. Equally, the lack of financial disclosure is not a barrier to the NCDR process proceeding, as disclosure will almost invariably be given as part of that process.
The Judge said in this case:
- “I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.”
In HJB v WPB [2024] the court said:
- “The parties will need some time to reflect on the decision and consider directions. In accordance with the changes to the Family Procedure Rules Part 3, Practice Direction 3A and Part 28 of the Family Procedure Rules, the court will be seeking to focus the parties’ minds on the potential for non-court dispute resolution of remaining issues between them as a next step and before further costs are expended in this litigation.”
In A v M No 3 [2024] the court went as far as adjourning proceedings, even though the case was extremely complicated:
- “This case cries out for mediation. I have the power to adjourn proceedings for that mediation to take place, and it is a power that I intend to exercise having considered with counsel when an appropriate time would be.”
Costs Orders
Further weight has been added to the court’s existing discretion to make costs orders against parties where it considers it appropriate due to a party’s conduct. The new rules expressly state that a failure to attend a Mediation Information Assessment Meeting (MIAM) or to attend NCDR must be taken into account when considering whether or not to make a costs order.
An example of the court making a costs order came in the recent children case of AM v RF [2024] where the court initially adjourned the matter for mediation, then subsequently made a costs order against the mother who had both wrongfully appealed and failed to actively engage in NCDR. She was ordered to pay 50% of the father’s costs.
Conclusion
It is clear that the courts are taking the change in the rules seriously, and that we are seeing increasing numbers of cases being adjourned and there being greater potential for costs orders being made where NCDR is not properly considered or attempted.
It is therefore vital that both family lawyers and clients consider NCDR in the first instance and throughout the lifetime of a case. Circumstances where NCDR can be ignored are few and far between. Parties who ignore this advice do so at their peril. NCDR options can offer many benefits to parties and their wider families.
It is important to take early advice in respect of any family law dispute. Our expert Family Law team at Stephens Scown can assist with NCDR options and helping you resolve your issues in the best way possible. Please do contact us for further details. Our lawyers are members of Resolution, the national body of family lawyers committed to resolving matters with minimal conflict where possible.