Changes to Family Procedure Rules encourage the use of non-Court dispute resolution

The media has recently reported that mediation is “revolutionising British business and Family Courts … in avoiding litigation and providing mutually agreeable solutions”.

It is easy to see how this has come about with Court backlogs and the cost of living crisis, meaning that there is less money available for expensive litigation, and with legislation changing to encourage out-of-Court processes.

What are the changes?

Monday 29 April 2024 heralded changes to the Family Procedure Rules (FPR) to encourage the use of non-Court dispute resolution in family matters. In short, the rule changes are:

  1. Lessen the exemptions to completing the Mediation Information and Assessment Meeting (MIAM), required in most private family cases before a Court application is issued;
  2. Require parties to update the Court by filing open statements of their position on and attempts to make use of non-Court processes;
  3. Impose duties on the Court to scrutinise compliance with the rules to ensure that opportunities to settle matters have not been overlooked;
  4. Provide the Court with powers to impose adjournments of hearings to encourage the take-up of non-Court options; and
  5. Bring into sharp focus the prospect of costs orders for breach of these rules.

The definition of “non-Court dispute resolution” (NCDR) at FPR 2.3(1)(b) is widened to mean:

“Methods of resolving a dispute other than through the Court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private dispute resolution process) and collaborative law.”

Indeed, a new form (Form FM5) now has to be lodged with the Court within Court proceedings at least seven days before the first hearing, i.e. the First Appointment in financial remedy proceedings, and the First Hearing and Dispute Resolution Appointment (FHDRA) in private law children proceedings. Alternatively, it needs to be lodged within such other period before that hearing as the Court may direct and, if required by the Court, at least seven days before a subsequent hearing or within such other period before a subsequent hearing as the Court may direct. The form must also be verified by a statement of truth. It must set out each party’s views on using non-Court dispute resolution as a means of resolving matters raised in the proceedings.

The days of family lawyers and clients alike ignoring out-of-Court processes has now gone and a different mindset must now be adopted. This is progress and a change that should be embraced by everyone. The stress, turmoil and financial burden experienced by families, and particularly children, going through contested family proceedings should now be lessened as a result.

Every family is different and therefore not every process is appropriate for every family. However, a good family lawyer will find a process that suits. For example, the private dispute resolution process has been revolutionary in the family law world, but it is possible to resolve matters even earlier or at least narrow some of the issues, using other processes.

Mediation, for instance, can still be used at any stage and can be dealt with as creatively as needed. Solicitors can accompany clients to mediation if necessary (rather than the clients being on their own with the mediator, if it is felt that there are imbalances between the clients), each party and their solicitors can stay in separate rooms with the mediator shuttling between the rooms to get to a resolution, or with the solicitors then potentially leaving their clients after a short period and returning later (but being available on the telephone if needed in between) to save costs. As long as a fair outcome is achieved, it does not matter how it is reached and an experienced mediator will usually be able to assess what is needed from an early stage in consultation with both solicitors acting for the couple.

Alternatively, an early opinion/evaluation from, say, an experienced family barrister on joint instructions from both parties (via a mediator or solicitors) can be really effective in terms of saving time and costs. The collaborative process also works well, with solicitors and clients working together to ensure fairness and harmony for the family going forward. Equally, arbitration can be extremely quick and effective for a number of issues.

The new changes are very welcome, and it is hoped that they will lead to better outcomes in divorces/separations all round.

Emma Harte, family partner at Keystone Law

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