The Family Procedure Rules (FPR) are the regulations everyone involved in family law cases must follow. Updates in April 2024 marked a significant change to the way we approach disputes about child arrangements, financial settlements in divorce and other family disputes.

The trend towards private resolution of disputes has been clear for some time across all areas of the civil (non-criminal) legal system. The 2024 changes to the FPR, widening out what’s known as Non-Court Dispute Resolution (NCDR), are a clear reflection of this trend in the context of family law and divorce.

Should I Try To Reach An Out Of Court Agreement?

Judges are tasked with encouraging informal discussions between the parties, and a spouse or parent who refuses to engage in NCDR could well face having to meet the other side’s legal costs. In our view using alternative dispute resolution in family law  has many benefits, and we are always happy to discuss the options available to you.

In the High Court case of In Re X in January 2024 Knowles J. succinctly expressed her view of NCDR, saying:

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.

And she continued:

I consider it might be helpful for those involved in family proceedings, whether concerning money or children, to understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings.

It’s clear from the 2024 FPR update and from this High Court opinion that settling your family law dispute out of court is very much the preferred option. So what are the changes, and how are they likely to impact our clients involved in family law disputes?

The 2024 Family Proceedings Rules

The modifications to the Family Proceedings Rules in 2024 include a whole series of measures aimed at keeping family disputes out of court. Taken together they can be viewed very much as the culmination of the trend to promote NCDR.

This move has been given added impetus against the backdrop of court backlogs, unavailability of judges, removal of legal aid for most family cases and the general loss of control parties experience once formal court proceedings are underway.

The main changes include:

  • An extension of what comes under the umbrella of NCDR so that what is non-court dispute resolution is widened to include not just the process of mediation but also arbitration, early neutral evaluation and collaborative law. The list is not exhaustive suggesting that other less developed types of ADR may also be considered as NCDR
  • As an indication of the courts’ proactive approach to NCDR parties to family disputes are required to complete Form FM5 setting out their views on NCDR. This is a detailed form where parties must answer questions such as:
    • Why you are now seeking a court order, despite having attended NCDR.
    • Outline why NCDR was not the right way of resolving the outstanding disputes in your case.

Courts can encourage NCDR by explaining the suitability of particular processes in your case as well as adjourning proceedings to facilitate engagement in NCDR. Where a party fails to cooperate or engage meaningfully in the discussion on NCDR that party may be sanctioned when it comes to costs orders at the end of the case.

  • Requiring mediators in Mediation Information and Assessment Meetings (MIAMs) to explain fully to couples the different forms of NCDR.
  • Reducing the availability of exemptions to MIAMs

Comment

In conclusion it is useful to return to Mrs Justice Knowles in In Re X where the reasoning behind the encouragement of NCDR was clarified. She stated.

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.

The updated rules are likely to see courts keeping cases under review regularly to decide whether NCDR is a suitable way resolve the proceedings. And Mrs Justice Knowles suggested that the court is very likely to think reviews are appropriate especially where the parties have not engaged meaningfully in any form of NCDR before issuing proceedings.

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