New Family Laws Prioritise Non-Court Dispute Resolution

Many people will turn to court proceedings to try to resolve their family law disputes. However, there are numerous other ways in which family law disputes can be resolved (e.g. mediation, arbitration or collaborative law), referred to as NCDR. The Family Procedure Rules, which govern how family law cases within proceedings should be conducted, will be changing on 29 April 2024 with a shift towards a greater focus on NCDR.

The main changes are as follows:

1. A new definition: the definition of NCDR will be widened to “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”. Therefore, the focus is not just on mediation but all forms of NCDR.
2. Changes to MIAMs: it is well known that before proceedings are issued, the prospective applicant must attend a Mediation, Information and Assessment Meeting (MIAM). However, the mediator at the MIAM will, from 29 April 2024, have to indicate which form(s) of NCDR may be most suitable as a means of resolving the dispute and why. Further, the mediator must also provide information about how to proceed with the NCDR form(s) in question. Essentially, mediators at the MIAM will be required to properly triage the matter into an appropriate form of dispute resolution.
3. A new form: Parties will be required to send to the court and to all other parties in the proceedings a form setting out their views on using NCDR to resolve the matters in the proceedings. This will ultimately require parties to contact each other and talk about NCDR.
4. Parties’ agreement to adjourn no longer required: the court will be able to adjourn the financial proceedings for NCDR to take place without the parties’ agreement. Until 29 April 2024, if either party does not agree to such adjournment, it cannot take place.
5. Potential costs sanctions: The court can make a Costs Order against a party who fails to, without good reason, attend a MIAM or engage with NCDR. This is a departure from the usual rule that each party pays their own legal costs in relation to the financial proceedings.

The above places greater weight on the importance of NCDR. The court clearly expects parties to consider NCDR at each stage of financial proceedings and whether it is suitable to resolve the proceedings. The above does not go so far as mandating mediation or other forms of NCDR. Certainly, it provides a greater incentive for parties to consider and engage with NCDR, as they may otherwise be at risk of having a Costs Order made against them.

At Birkett Long, we can guide you through the steps required both before and during court proceedings to ensure that there is compliance with the above. We can also advise as to the forms of NCDR; in fact, we have four collaborative lawyers who can assist with resolving the matter using collaborative law, which may help to maximise the chances of resolution at the earliest possible stage. Further details about collaborative law can be found on our website Collaborative Family Law Birkett Long LLP.

If you have any questions, please get in touch. I can be contacted on 0330 818 3071 or via [email protected].