Non-Court Dispute Resolution - the Future of Family Law

In recent years there has been a significant increase in the number of families seeking court intervention to resolve disputes arising from their separation. In 2022, over 60,000 private law children and contested financial remedy cases went through the court*. In addition, due to the impact of the Covid-19 pandemic, the courts are experiencing a backlog of cases causing proceedings to become protracted. This leads to prolonged uncertainty which can be harmful for any children involved, and cause acrimony and distress for the parties.

Increasingly, families are looking to alternatives to going to court and there has been a concerted effort by those involved in the family justice system to promote such alternatives. Alongside that, recent court decisions illustrate that the judiciary will not hesitate in appropriate cases to ensure that families are properly exploring non-court options and not simply paying them lip service.

The Consultations

In March 2023, the Ministry of Justice published the conclusions of its consultation which proposed making mediation mandatory for separating couples prior to issuing court proceedings. Mediation is one of the many popular methods of resolving disputes out of court and allows parties to sit down with an impartial, third-party mediator who can assist them in reaching a resolution in an amicable and constructive way. The MOJ’s proposal was an extension to the existing rules which require most parties (save for where there is a valid exemption) to attend a MIAM (a Mediation and Information Assessment Meeting) before issuing an application. In a MIAM, the mediator will explore and provide information about all the non-court options as well as assessing suitability for mediation. An important part of mediation has always been that it is a voluntary process meaning there is no obligation on parties to engage in the process.     

The MOJ’s proposals were roundly criticised in the main due to the imposition of a process which by its very nature is a voluntary one, that being one reason why proposals reached in mediation are so often successful and have longevity. The Vice President of the Law Society, Richard Atkinson commented: “Mandatory attendance for mediation could negatively affect the outcome of a dispute. Making mediation voluntary means that domestic abuse victims can be referred to services that can guide them through the right dispute resolution process for them” **.

Alongside the MOJ’s consultation, the Family Procedure Rules Committee considered how the Family Procedure Rules 2010 (FPR) could encourage the earlier resolution of private family disputes and reduce the caseload of the courts. Whilst the changes were not publicised with the same fanfare as the MOJ’s proposals, changes were proposed and on 7 December 2023, the new rules were laid before Parliament. 

The new rules will come into force on 29 April 2024. 

Meanwhile, the MOJ abandoned plans to make mediation mandatory in favour of supporting the provision of early legal advice. It is unclear quite how that will work in practice, but what is clear is that the new FPR will be used to encouraged and promote non-court options. The government has pledged to also roll out the Pathfinder pilot (launched in 2022) nationally. Pathfinder facilitates the early sharing of information between police, local authorities, other agencies and the courts with the aim of judges having more useful and relevant information before the first hearing in cases concerning children enabling the court to problem solve and signpost more effectively and resolve cases at an earlier stage.

The amendments to the FPR

The amendments to the FPR are intended to strengthen the use of non-court dispute resolution including mediation. The key amendments are as follows:

1. The MIAM exemptions have been tightened making it more difficult to claim an exemption in most circumstances. Notable amendments include:
    
2. FPR 3.8(1)(c)(ii)(ad) currently allows parties to claim an exemption where an application to the court is urgent and a delay would case ‘unreasonable hardship’. ‘Unreasonable hardship’ will now be amended to ‘significant financial hardship’. Therefore, this exemption will likely only be relevant in financial remedy cases. 
    
3. FPR 3.8(1)(k) will be amended so that parties must explain why they are not able to attend a MIAM online if the reason for non-attendance is due to a lack of mediators in their area.
    
4. Claims for exemption to attend a MIAM will be reviewed at an earlier stage in the court process – either at allocation or the first hearing. 
    
5. The definition of ‘non-court dispute resolution’ at 2.3(1)(b) of the FPR will be widened, to include a non-exhaustive list. This will include mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law. 
    
6. MIAM providers will be required under FPR 3.9(2), to indicate which form of non-court dispute resolution will be most suitable, explain why and provide information to the parties on how they can proceed with the form of non-court dispute resolution suggested. 
    
7. FPR 3.3(1A) will allow the court to request that a party files and serves a form, in open correspondence, setting out their views on using non-court dispute resolution to resolve their case. 
    
8. FPR 3.4(1A) will give judges the power where timetabling allows to encourage parties to obtain information and advice about non-court dispute resolution and to undertake it. 
    
9. FPR 28.3(7) tightens up sanctions so that where the court considers that non-court dispute resolution would be appropriate, and a party has failed to engage in it, that will be a reason for departing from the general starting point that there should be no order as to costs.

Judicial approach

In Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ 1416  the Court of Appeal determined that the court has the power to compel parties in civil proceedings to engage in non-court dispute resolution and if necessary to stay the proceedings to allow such processes to take place. 

Following that judgment, Mrs Justice Knowles in Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) made it clear that the court in family proceedings has the same case management powers;

“It may be thought that the decision in Churchill v Merthyr Tydfil is of limited relevance to family proceedings. To make that assumption is unwise. The active case management powers of the CPR mirror the active case management powers in the FPR almost word for word and both the civil and the family court have a long-established right to control their own processes. The settling of cases quickly supports the accessibility, fairness and efficiency of the civil, and I emphasise, the family justice system. As Sir Geoffrey Vos, MR stated in paragraph 59 of Churchill v Merthyr Tydfil:

“…even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method … is a matter for the court's discretion, to which many factors will be relevant.”

Mrs Justice Knowles went on to say;

“Going forward, parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings - the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”

Further, she made it clear that had the new rules been in place, she would have adjourned the proceedings to encourage the parties to engage in non-court dispute resolution.

Commentary

It is undoubtedly positive and well overdue that efforts are being made to encourage parties to seek an early resolution and creative solutions, as going to court can be costly, time-consuming and emotionally draining often with an uncertain outcome. The amendments to the FPR, and the likely judicial encouragement which will follow from that (if Re X is anything to go by) will it is hoped help more families find out about the different forms of non-court dispute resolution that are open to them at an early stage before they rush off to court.  It is also hoped that the amendments to the MIAM exemptions will make it more challenging to bypass attending a MIAM and therefore avoid mediation altogether. 

The new provisions do not mandate mediation and other non-court options, but it is anticipated that pressure will be placed on litigants who do not explore these options and what might be the best approach for the family. It remains to be seen however whether this will follow through into costs sanctions for those parties who dismiss non-court options without a good reason. Applicants and respondents alike would certainly be wise to explore all options and ensure there is evidence that they have done so.

* ‘Children’s wellbeing at the heart of family court reforms’ (2024) Ministry of Justice, HM Courts & Tribunals Service, Cafcass, The Rt Hon Alex Chalk KC MP, and Lord Bellamy KC https://www.gov.uk/government/news/childrens-wellbeing-at-the-heart-of-family-court-reforms

** ‘Mandatory mediation abandoned for separating couples’ (2024) The Law Society of England and Wales  https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/mandatory-mediation-abandoned-for-separating-couples