non-court dispute resolution

Partner Michelle Uppal discusses the effect that changes to Part 3 of the Family Procedure Rules could have on attitudes towards non-court dispute resolution in Family Law Week.

Michelle’s article was published in Family Law Week, 20 May 2024, and can be found here.

The dynamic evolution of family law continues apace. On 29 April 2024, some of the most significant changes to the Family Procedure Rules (FPR) since they were first introduced in 2010 took effect. The overriding objective of the amendments to the longstanding Part 3 of the FPR is to enable the court “to deal with cases justly, having regard to any welfare issues involved.” By enhancing the court’s powers to bring disputing parties to the negotiating table, the new amendments – Family Procedure (Amendment No 2) Rules 2023 (SI 2023/1324) – could lead to a sea change in attitudes towards non-court dispute resolution (NCDR) in the minds of clients and the general public alike.

The amendments seek to provide a path that encourages and facilitates the early and cost-efficient resolution of family disputes, specifically focused on private law children and financial remedy arrangements. They aim to reduce the burden on the family courts and streamline the resolution process. The outcome could be a marked transformation in seeing non-court dispute resolution as the go-to means of resolving family law cases, by incorporating all out of court methods under one banner, with a much-enlarged definition.

Whereas the previous definition of non-court dispute resolution named only mediation – “methods of resolving a dispute, including mediation, other than through the normal court process” – the new definition has rightly been expanded to include a variety of methods beyond the traditional court processes, which are thoughtfully – although not thoroughly – catalogued. Specifically, these are “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”.

Notably, terminology such as alternative dispute resolution (ADR) has been subsumed into non-court dispute resolution’s new broader definition. As part of the court’s role in promoting non-court dispute resolution, the amended FPR now require parties to record and file their views using a new form (FM5), which they send to the court as a statement of their position on non-court dispute resolution, including mediation, arbitration, neutral evaluation and collaborative law. There are also new forms for parties to file at the time of making a financial application and children application.

The primary objective of this much-expanded range of dispute resolution options is to re-evaluate and strengthen the mediation exemption. This forms part of a wider effort to encourage parties who are involved in private law family disputes, by placing a greater expectation on them to explore methods of non-court dispute resolution as a viable alternative before resorting to court proceedings. In practical terms, it is anticipated that the promotion of mediation and other forms of non-court dispute resolution will eventually make it the default option following a relationship breakdown.

In striking a balance between encouraging parties towards non-court dispute resolution, but without compelling them to do so in unsuitable circumstances, the Part 3 amendments include a variety of changes to Mediation Information & Assessment Meetings (MIAM). This is an initial meeting with a specially qualified family mediator to consider whether their issues can be resolved without going to court. Before they commence court proceedings, separating parties are obliged, although not legally required, to attend a MIAM.

Under Part 3 of the FPR, the court has to consider whether non-court dispute resolution is appropriate at every stage and has a duty to take into account whether a MIAM has taken place, whether a MIAM exemption was valid, or whether the parties had already engaged in non-court dispute resolution. To date, the success rate has been low, as roughly two-thirds of applicants do not attend a MIAM pre-application. The range of exemptions – 15 reasons why the court will allow a party to ask for an exemption for a MIAM Certificate – is extensive. These include: an inability to attend at short notice or for other reasons (e.g. one party is living abroad, in prison, on bail, or their whereabouts are unknown); financial hardship; an inability to find a mediator; lack of availability of a physical office; child protection issues; disability issues, and a variety of procedural factors, such as previous attendance at a recent MIAM.

Most importantly, the first reason listed under MIAM certificate exemptions is domestic abuse: if a party has been the victim of domestic abuse they do not have to attend family mediation. The exemption remains, but under the Part 3 amendments, a welcome and fundamental update to the list of MIAM exemptions has been made: aligning the definition of domestic violence with the provisions of the Domestic Abuse Act 2021, so that domestic violence is now termed domestic abuse. This has a much broader definition. Abusive behaviour can be defined as any of the following: physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; psychological, emotional or other abuse.

Further changes in the update to the MIAM exemptions include:

• The excuse of not being able to attend a MIAM because a party is living abroad or cannot attend a physical office has been abolished so that non-court dispute resolution can now take place virtually.
• Although most exemptions about inaccessibility remain, they now only apply when a person can prove that they are also unable to use/access online or video-link facilities.
• Efforts to resolve a case with non-court dispute resolution in the last 4 months must now be proved.
• An upgrade to “significant financial hardship” from simply exempting a case on financial hardship is relevant when claiming a case is urgent. The terminology for exemptions based on urgency has changed from “unreasonable hardship” to “significant financial hardship.”
• The removal of MIAM exemptions from a mediator.
• The removal of a MIAM exemption if the Respondent does not engage – a MIAM is now a standalone service.

Under the amendments, there is a further requirement that MIAM providers must “indicate to those attending the MIAM which form, or forms of non-court dispute resolution may be most suitable as a means of resolving the dispute and why” and provide them with information about how best to proceed. The FPR changes provide an opportunity to outline the benefits of a MIAM and its potentially invaluable role in helping to support and manage expectations.

As a result of the Part 3 amendments, it seems highly probable that judges will take their role of scrutinising each party’s view of non-court dispute resolution much more seriously. They can also apply a more robust degree of judicial persuasion with greater confidence following the civil decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, which overturned the previous Halsey ruling that a court could not compel parties to mediate. Sir Geoffrey Vos, MR, stated in 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.”

Another important recent judgment, Re: X (Financial Remedy: Non-Court Dispute Resolution), adds further persuasive substance. Handed down by Mrs Justice Knowles in March 2024, it demonstrates that there is strong judicial support for the Part 3 amendments. For these to be effective, such judicial backing is critical. The most significant and exciting development is that the changes finally have the weight of judicial backing: parties must now consider non-court dispute resolution at the start, middle and throughout the journey of their case.

The Judge’s opening remarks set the tone: “The adversarial court process is not always suited to the resolution of family disputes. These are often best resolved by discussion and agreement outside of the court arena, as long as that process can be managed safely and appropriately.” In commenting on the Churchill v Merthyr Tydfil case, the Judge said: “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 (Civil Procedure Rules) 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.”

She further noted that “Non-court dispute resolution is particularly apposite for the resolution of family disputes, whether involving children or finances. Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children.” Mrs Justice Knowles then concluded with a direct comment on the Part 3 amendments as being: “helpful for those involved in family proceedings…to understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate. Furthermore, I want to signal that, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable. Changes to the Family Procedure Rules 2010 (“the FPR”) which are due to come into effect on 29 April 2024 will give an added impetus to the court’s duty in this regard.”

This judgment is pivotal, providing the clearest possible indication of the judicial approach that will be taken: Judges now expect a serious effort to be made towards resolution and will actively evaluate whether non-court dispute resolution is suitable at every stage of a case. They also now have the power to use any natural gaps in the proceedings timetable, either for the purposes of non-court dispute resolution or to adjourn proceedings, if necessary, in order for the parties to try it. Mrs Justice Knowle and all the policy activists who have notably contributed to these changes (such as Caroline Bowden at Anthony Gold) warn that while non-court dispute resolution is not mandatory in family cases, it is in civil cases – as highlighted in the Churchill v Merthyr Tydfil judgment. They also suggest that change may well follow in family cases if this does not work, or people’s mindsets do not change.

My hope is that the courts will now flex their collective muscles and impose cost orders for those who fail to get around the table without good reason. In doing so, this could ultimately spell the end of parties wanting their day in court, especially if there are more constructive options available. As a precursor to the Part 3 amendments, the government’s consultation on mediation in 2023 concluded on a positive note: “Mediation can be a quicker, less adversarial, and more cost-effective option for many people if they can reach an agreement. This can result in better outcomes for separating families and, more importantly, for any children involved in these disputes.” It is likely that the Part 3 amendments, backed up by action from the courts, will make the drive towards mediation result in much better outcomes for separating couples.