Family Law Update – Changes to Non Court Dispute Resolution

On 29 April 2024, changes were introduced to Family Law procedure which encourages parties to engage in more constructive and less litigious action.  This article sets out some of the important changes that came into full effect on that date.

The recent changes to the Family Procedure Rules reflect a shift towards a greater emphasis on Non-Court Dispute Resolution (NCDR). NCDR refers to the various mechanisms which are used to resolve family disputes out of court. It has many advantages including saving parties time, money and emotional stress. Its potential to reduce stress and preserve relationships is particularly important in family disputes where children are involved.

Definition of Non Court Dispute Resolution

Under the new definition expands NCDR to mean ‘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 FDR process) and collaborative law’. The new definition has widened the scope of NCDR beyond mediation and allows for methods of dispute resolution that are introduced in the future to be included.

The Parties Views

The court can now require the parties to file and serve ‘Form FM5’ which sets out “their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings”. Parties must genuinely consider, discuss and inform the court of their view on NCDR. It is hoped that this will encourage parties to carefully evaluate the different options available to them and take time to reflect on their decisions.

It remains the case that there are possible cost sanctions for those who fail to engage in out of court resolution without good reason. Parties may be penalised if the court decides to depart from the general starting point of no order as to costs.

Adjourning Proceedings

Before recent changes, the parties agreement was required before proceedings could be adjourned to enable NCDR to take place. The new regime has removed the need for the parties agreement. The court has the power to use its own initiative to adjourn proceedings to encourage parties to undertake NCDR where it is appropriate and where ‘the timetabling of proceedings allows sufficient time’.

The Role of Mediation Providers

Mediation providers will be required to explain the potential benefits of mediation and other NCDR options, the most suitable form of NCDR and how to proceed before they sign off any application to the Court. This will ensure that parties are properly informed about their options (beyond mediation) and therefore better equipped to make a decision on how to resolve their issues.

Conclusion

Although it remains the case that parties cannot be forced to attend NCDR, the amendments represent a greater shift towards a more proactive approach in supporting and encouraging parties to settle matters amicably out of court. We may see the court’s taking a more robust approach given its new discretion to request statements regarding NCDR and the removal of parties’ agreement when adjourning proceedings. Legal professionals will need to ensure their clients are fully informed of the benefits and options of NCDR and the legal implications of failing to engage.

If you would like to discuss any of the issues in this article, please contact Emma Rothstein, Partner in our Family department on 0208 949 9500 or erothstein@pearsonhards.co.uk.