On April 29th, changes to the Family Procedure Rules will be introduced. Couples in dispute need to be aware of these changes and the possible cost implications if they fail to follow the expectations of the new rules, namely that set procedures are followed to try to reach a pre-court settlement. A major change is the duty to actively consider and explore non-court dispute resolution (also often know as ADR) before going to Court and during the Court process. This will apply to private children law issues as well as financial matters arising from divorce, judicial separation, or dissolution of a civil partnership.
Other changes include a timely change to refer to what used to be called ‘domestic violence’ to ‘domestic abuse’.
What are the Family Procedure Rules (FPR)?
The Family Procedure Rules govern the procedures used in family courts in England and Wales. The forthcoming changes will change the definition of non-court dispute resolution in the FPR. Section 2.3(1)(b) provides an updated definition of non-court dispute resolution (NCDR) stating that ‘non-court dispute resolution’ means 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 Financial Dispute Resolution process) and collaborative law’.
What is non-court dispute resolution (NCDR)?
NCDR involves methods of dispute resolution other than through the court process. Many NCDR methods place the emphasis on parties reaching an outcome together, instead of leaving it in the hands of a third party. It is often seen as a more amicable way of reaching a solution, where individuals remain in control of the outcome and avoid the adversarial nature of Court proceedings.
There are four main methods of NCDR referred to in the FPR: mediation, arbitration, evaluation by a neutral third party and collaborative law.
Mediation is a process by which you will have discussions with your former partner, together with a trained mediator, to discuss future arrangements. The discussions are confidential, which allows a ‘card on the table’ approach to find compromise. Mediators are neutral and will help you try and reach an agreement. Mediation can include confidential discussions with children, having lawyers present or hybrid mediation. We offer all of these options at Goodman Ray.
Collaborative law involves lawyers and individuals working together away from the Court process to sort through problems relating to your separation. Each person will appoint their own collaboratively trained lawyer, the parties will then meet together to work through arrangements. The discussions are confidential and both lawyers and individuals will be present for almost all discussions.
Arbitration involves you and your partner appointing an arbitrator, often with the help of a lawyer, who can also advise and assist you throughout this process. The arbitrator will assist you at all stages, eventually deciding after hearing both cases.
Evaluation by a neutral third party, involves the parties appointing an independent and impartial evaluator to provide an objective and unbiased view. This typically happens before Court in order to help individuals make informed decisions having been given an indication as to how the law may apply to their case if they decided to go to Court.
There are other methods of NCDR that we offer which are not explicitly referred to. These include round-table meetings as the one lawyer-two client model, where two individuals see a neutral solicitor.
So, what changes will we be seeing?
Changes to MIAMs – 3.9(2)
One of the changes is that typically both parties will be the requirement for applicants to have attended a Mediation Information & Assessment Meeting (MIAM) prior to attending court, save for very limited circumstances. Mediators will no longer be able to provide exemptions in MIAMs to applicants wanting to go to Court- the applicant will now need to justify why NCDR is not suitable when making their applications.
During the MIAM, the mediator must indicate the methods of NCDR that will be most suitable to the parties, as well as providing information to the parties relating to how to pursue these methods.
More individuals will be required to attend MIAMs before Court, both to consider mediation as well as to be informed about other methods of NCDR.
Form to be completed – 3.3(1A)
Parties will also now have to fill out a form prior to court proceedings, expressing their views on using methods of NCDR, when resolving issues raised in court proceedings.
The Court will expect parties to justify why they are at Court, their views on/experience of NCDR in the case, and whether it may be suitable.
It is hoped that this form will promote the use of NCDR.
Adjournments – 3.3(1)(b) and 3.4(1A)
Prior to the introduction of the FPR amendments, a court could adjourn a case for parties to look into NCDR, if the parties agreed. The new rules, however, have removed the need for agreement. Instead, the court will now be able to adjourn without the two parties’ agreement during financial proceedings, where the timetabling allows sufficient time for parties to explore NCDR. This power is in place throughout the case. If individuals do not try NCDR before going to Court or if they do not remain open to it during the case, they can expect the Court to potentially adjourn the application, and even make costs orders against them in financial remedy cases.
Cost sanctions – 28.3(7)
The changes also indicate the possibility of incurring a cost sanction in financial remedy cases if you apply to court without exploring NCDR, provided that you are unreasonably obstructing NCDR.
This means if parties have not made any effort to explore methods of NCDR, they may incur a costs order.
A summary of the changes
To summarise, parties now have a far greater obligation upon them to consider and pursue NCDR. This is something the courts are firmly behind as was demonstrated in the recent case of Re X (Financial Remedy: Non-Court Dispute Resolution), whereby Mrs Justice Knowles made it clear had the new FPR rules been in place an adjournment would have taken place to encourage NCDR in circumstances whether neither party had tried in before going to Court or during the Court process. .
To prevent parties incurring cost sanction or adjournments they should now have to:
- Attend a MIAM before going to court
- Explain what attempts have been made in exhausting NCDR and be able to justify why the assistance of the Court is required
The dawn of a new era in resolving family issues?
The changes in giving Courts powers to ensure parties try NCDR represent a huge shift, if they are actively implemented. Many Courts and Judges have promoted the use of NCDR in the past, but not had the backing to ensure parties try it. That has now changed and it will hopefully bring about an end to the approach of ‘issue first, talk later’ that has happened in the past. It is the chance for a cultural shift in how we approach trying to resolve family issues.
Goodman Ray is a firm committed to NCDR as a method of assisting clients and offer a wide range of NCDR services from experienced practitioners which we see work for our clients time and time again. We hope that many more individuals who would have been forced through the Court system, sometimes unwittingly, will be given the opportunity to settle their case and find compromise in a far more amicable way and without the animosity, costs, stress and delay of Court proceedings.
Written by Lucy Parker (Paralegal) and Thomas Brownrigg (Partner and Accredited Mediator)
