The new regulation mandating the majority of separating and divorcing couples to first attempt non-court dispute resolution methods, like mediation, for addressing children arrangements and financial matters, has officially come into effect. Industry commentators have reacted to the changes.
The rules are designed to focus on the opportunities for resolution away from the court. They are intended to strengthen the court’s duty to encourage and facilitate non-court dispute resolution (NCDR).
Michelle Uppal, partner at family law firm Lowry Legal, said that the amendments to Part 3 of the Family Procedure Rules could “lead to a sea change in attitudes towards non-court dispute resolution in the minds of clients and the general public alike”. She continued:
“The new rules will rightly bring all out of court methods under one new banner term – non-court dispute resolution – and expand its definition to include not only mediation but arbitration, evaluation by a neutral third party, collaborative law, and more.
There is also a welcome and fundamental update to Mediation Information & Assessment Meeting exemptions, including aligning the definition of domestic violence with the provisions of the Domestic Abuse Act 2021, and allowing parties to attend the meetings virtually, removing the excuse of non-attendance due to being abroad.
The decision from Mrs Justice Knowles in Re X (Financial Remedy: Non-Court Dispute Resolution) 2024 last month has been critical in ensuring judicial backing. This is pivotal – judges will now actively evaluate whether non-court dispute resolution is suitable at all stages of a case. I hope that the courts will now flex their muscles and impose cost orders for those who fail to get around the table without good reason.”
Karen Barham, Moore Barlow LLP, Mediator, Parenting Coordinator, Solicitor said that lawyers’ negotiations, “whether without prejudice or open, although to be encouraged, will not be a form of NCDR” within the new definition. She added:
“Lawyers will be unable to self-certify that there has been NCDR by virtue of negotiations with one another unless they have been in the collaborative process. The number of MIAM exemptions has been reduced, and when claimed, evidence of exemption will be required at issue of proceedings.
Unless exempt, lawyers should ensure their clients are MIAM compliant. I recommend that both applicants and respondents, including those already in the court system, obtain a MIAM. The MIAM is not just a tick-box exercise; it is a fulsome explanation of all forms of NCDR and an opportunity for signposting to support and other services, which is extremely beneficial to families particularly where there are children. MIAM compliance may protect your client from a costs order.”
Nick Gova, partner and Head of Family at city law firm Spector Constant & Williams said that the new rules are a “welcome and inevitable shift in family law”. He continued:
“It will now be at the heart of every family law matter. This is a crucial but necessary steps at a time where courts remain burdened with frivolous applications or parties simply wishing to litigate.”
Echoing this, Amy Rowe, partner at Dawson Cornwell, said that the changes to the rules are a “welcome bolster to the importance of engaging in dispute resolution to resolve family disputes in appropriate cases”. She added:
“The rules place a greater expectation on parties and the court to consider whether mediation should be attempted at every stage in proceedings, and costs rules have been amended so that the court can order costs in financial remedy cases if it considers that a party has not made a reasonable attempt to attend dispute resolution.
There will be fewer MIAM exemptions and there is an expectation on the court to enforce the MIAM requirement more stringently in a hope to divert more parties into dispute resolution before they issue proceedings.
One hopes this will relieve the burden on the family court and, most importantly, result in more families resolving their issues consensually without the emotional and financial cost of court proceedings.”
Gemma Hope, Specialist Family Solicitor, Mediator and Collaborative Lawyer at Family Law Partners, said of the changes:
“To be clear, looking at alternatives to court is not just about alleviating the pressure on the courts. It’s about reducing the level of animosity that can be caused by separation or divorce. It’s about saving families time and costs as well as finding outcomes for separated families that are long-lasting. It’s about finding the right tool for the job. The court can be a blunt instrument.
It goes without saying that, in some cases, court will be the only suitable option and the court system needs to be there to deal with those cases. However, in the vast majority of cases there is likely to be a much better way of resolving matters than through the court.
Non-court options can be quicker, less adversarial, and more cost effective. This can result in better outcomes for separating couples and for any children involved. It’s also important to be aware that, if you apply to court unnecessarily to resolve an issue that could more appropriately be dealt with by a form of non-court dispute resolution, you are likely to now get bitten.”
One Response
Holland Family Law in Leicester are now offering a new Early Neutral Evaluation (ENE) service aimed at assisting parties with issues that need to be addressed before an overall agreement can be reached. Have a look at the ENE blog on their website which explains fully how it all works. Hopefully this will be another option available to parties seeking to avoid court proceedings.