20 May 2024

In recent years significant efforts have been made to encourage parties to resolve family disputes outside court and in March 2023 a consultation was launched by the government which proposed to make mediation mandatory for separating couples. In January of this year the government published a response which concluded that mediation should not be mandatory but, notwithstanding that, the Family Procedural Rule Committee have now approved several changes to the Family Procedural Rules aimed at strengthening non-court dispute resolution (NCDR) such as mediation and arbitration. These changes came into force on 29 April 2024.

What are the Family Procedure Rules?

The Family Procedure Rules (FPR) govern the practice and procedure to be followed by legal practitioners in the family courts. FPR Part 3 sets out the requirements for mediation. Under Part 3, before parties can start family court proceedings, they must attend a Mediation Information and Assessment Meeting (MIAM), unless an exemption applies. The aim of a MIAM is to ensure both parties consider the suitability of mediation before involving the court. The amendments to Part 3 strengthen the existing rules and limit the reliance on exemptions, compelling the parties to try to resolve their disputes out of court.

What are the changes to Part 3 and why do they matter?

Previously NCDR under the FPR only included mediation but this definition has now been widened to include other forms of NCDR such as arbitration, evaluation by a neutral third party and collaborative law. The changes also impose a statutory requirement on MIAM providers to “indicate which forms of non-court dispute resolution may be most suitable as a means of resolving the dispute and why”. The court now has the power to require a party to file a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings. This should encourage parties to discuss the prospects of NCDR as they will be required by the court to demonstrate why NCDR is not suitable.

This in turn is likely to have an impact on costs, due to a change to Part 28 of the FPR, as the court will be able to ignore the general presumption of no order as to costs where parties have failed to engage in NCDR without good reasons. A further change to Part 3 will echo the ruling in the Court of Appeal case of Churchill v Merthyr Tydfil Borough County Council (2023) allowing judges to stay proceedings to allow for NCDR to take place. Previously the court only had the power to stay proceedings for NCDR if the parties agreed, however, that requirement has now been removed, meaning that parties may be forced to engage in mediation midway through proceedings, which is likely to cause delay. So, although the government’s consultation fell short of mandating mediation, parties will need to consider and engage in NCDR with cost penalties and harsh case management decisions if they do not.

The amendments to Part 3 also limit the circumstances in which a MIAM exemption applies to instances of domestic abuse, urgency or where there are safety concerns. Previous exemptions based on one party not being contactable (living abroad or being in prison), will no longer apply and provisions have been included to allow for online MIAMs. If the other party cannot join remotely, the person issuing the application will still need to attend a standalone MIAM session.

What will be the likely impact of the changes?

It is hoped that the changes will result in increased interest in NCDR, particularly as there are likely to be cost penalties for parties who go straight to court without trying to agree matters voluntarily. Given the significant backlog of cases being dealt with by the courts (each case on average takes 45 weeks to complete), it is likely that the courts will embrace the changes to Part 3 to divert cases away from court but only time will tell how stringently these rules will be applied.

Clients seeking legal advice about the breakdown of their marriage should consider NCDR at an early stage to ensure they are complying with the changes to Part 3 and to ensure that they will not be at risk in relation to costs or delay if court proceedings are commenced. Taking advice from a financial specialist at the outset is advisable.

To learn more about this article, please contact Richard Handel.

Written by Tamara Turner-Distin.

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