On 29 April 2024, new rules were introduced in the Family Court which will make it harder for people to avoid using alternatives to court. This will encourage the resolution of financial matters relating to divorce and cases involving arrangements with your children following parental separation.
The Family Court Approach to Alternative Dispute Resolution (ADR)
Recently, a Family Court judge emphasised the importance for couples to consider ‘at every stage’ of the court proceedings, the appropriateness of ADR in an attempt to direct the minds of the couple towards reaching a solution. This can help avoid the delay, expense and ongoing stress that going to court may bring.
One of the effects of too many cases in an under-resourced court is that applications can now take many months to run their course.
The Family Court has been trying to encourage greater use of these alternatives for years. People who wish to commence an application in the Family Court for a financial remedy order in a divorce or an application about children, usually first have to attend a Mediation Information and Assessment Meeting (MIAM) with a mediator. At this meeting they are provided with information about mediation and the other alternatives to court.
If the prospective applicant wants to then mediate, the prospective respondent is invited to attend a MIAM and if they agree that mediation is the way forward, mediation can get underway. If either of them does not wish to mediate or if the prospective respondent simply ignores or refuses the invitation to a MIAM, then the application to the court can go ahead. That has now changed.
The amended rules (from 29 April 2024) strengthen the position of alternatives to court (which it calls NCDR – non-court dispute resolution) so that it is now defined as “‘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”.
The court will also now be able to order parties to a case to file and serve ‘a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings’.
It will no longer be necessary for parties to consent to use NCDR. The attitude is now that compulsory NCDR that is ‘not disproportionately onerous and does not foreclose the parties’ effective access to the court’ is lawful.
Failure to engage in NCDR will allow the Court to depart from the starting position that there should be no order as to costs. Those parties who readily dismiss alternatives to litigation may well face financial sanctions.
In financial cases, a failure to engage in NCDR without good reason may justify the court departing from the general rule that each party pays their own legal fees and it may make orders for costs against parties. (This threat of costs will not apply in children cases, where costs orders are exceptionally rare as they would not normally be appropriate).
Timing in all cases
Whilst not quite making non-court dispute resolution compulsory the position is very clear: making applications to Court without a proper consideration of NCDR methods – or considering the use of such methods during proceedings (where time allows) – is likely to result in costs penalties.
Therefore the timing of ADR (Alternative Dispute Resolution) attendance is crucial.
If your case is at the very early stages of the court proceedings, the court may consider that it is more appropriate for your dispute to be considered via ADR to try to help save you the time, stress and legal costs that will otherwise inevitably be incurred via contested court proceedings.
If you have not yet commenced court proceedings and you are looking to negotiate to avoid court, all options remain open to you. Contact our family law expert Wendy Wharton who will help you resolve your dispute as amicably, swiftly and fairly as possible.