Partner Tasha Bevan-Stewart, in our Family Law team, provides an update on the developments on out of court dispute resolution in Family Law.
Since my earlier blog article on ‘The Good Divorce’ in May 2022, the Family Law procedure rules have been updated to further incentivise the use of non-court methods to resolve Family Law disputes.
It is now mandatory for parties applying to court for a financial or child arrangements order to declare upfront which non-court options they have tried, and explain why the attempts have not worked. The assumption is now that parties and their lawyers will work harder to resolve issues first outside the courtroom, and that a court application should always be the last resort. (There are some limited exceptions relating to urgent cases and those involving domestic abuse).
The new family procedure rules also require the court to encourage parties to obtain information and advice about, and engage in, non-court dispute resolution [known as ‘NCDR’].
Courts and judges will now expect that parties and their lawyers have made serious efforts to resolve their family law dispute out of court. If not, they will want to know why.
The definition of non-court dispute resolution has been expanded to include other options beyond mediation. Neutral evaluation, collaborative practice and arbitration are specifically mentioned in the court rules.
The Practice Direction to the new rules states:
“The adversarial court process is not always best suited to the resolution of family disputes. Such disputes are often best resolved through discussion and agreement, where that can be managed safely and appropriately.
There are various types of non-court dispute resolution which can enable parties to settle disagreements, for example, mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law. A mediator who conducts a MIAM is a qualified independent facilitator who will also discuss all potentially suitable forms of non-court dispute resolution.”
To reinforce this new approach, the rules have also been amended to provide for costs consequences for those refusing unreasonably to participate in NCDR. In deciding whether to make a costs order in family proceedings, the court must have regard to any failure by a party, without good reason, to attend NCDR. A paragraph in the rules states that:
“the court may take the parties’ conduct in relation to attending NCDR into account when considering whether to make an order for costs in relation to the proceedings".
Part of this shift is a drive to deal with the ever-increasing number of family law cases putting pressure on a stretched and under-resourced court system. We, as Family lawyers, know that going to court can often put undue strain on those already going through a difficult time whilst divorcing or separating.
There are now so many professionally-guided options for those clients to consider which don’t involve court, that it is entirely possible to have a well-managed divorce, dealing with financial and childcare arrangements, without setting foot in a courtroom. Importantly, this usually generates better outcomes for a divorcing client in the long term, and it keeps costs down.
The collaborative process is a very good example of this. If you decide to handle your divorce collaboratively, you will have an expert Family lawyer by your side at every step, to advise and consult on the best approach, and involve financial and other professionals to help you. Letter writing is kept out of the collaborative approach, and we agree to meet and discuss issues face to face, rather than rushing off to court. Importantly, you receive on hand legal advice and the process is holistic and far less stressful than other adversarial approaches. It is also much more cost-effective than pursuing litigation.
Having seen many Family Law clients go through divorce over my 18 years in practice, I can certainly say that the collaborative approach offers the most dignified, supportive experience for divorcing couples. It gives those looking for a level of closure a better opportunity to discuss issues that are important to them, have a sense of control over their outcome and enhance communications for the future – creating a ‘separated family’ that can still function.
Please also see my blog article, 'Collaborative Divorce - Finding Solutions Together'.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
