Resolving Issues Outside of Court

As we reported here recently, the government has shelved its plans to make mediation compulsory in most family cases. However, the courts are themselves taking steps to ensure that more family cases are resolved via ‘non-court dispute resolution’.

Before we look at how the courts are going to do this, we first need to consider exactly what is meant by ‘non-court dispute resolution’.

What is ‘non-court dispute resolution’?

The steps that the courts are going to take are contained in new rules, which will come into force on the 29^th of April. One of the rules provides a definition of ‘non-court dispute resolution’.

The rules state that ‘non-court dispute resolution’ means methods of resolving issues 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.

Briefly, the methods specifically mentioned are:

Mediation: A process of assisted negotiation, where an independent mediator helps couples resolve issues. For more information on mediation, see this page.

Arbitration: Whereby the parties agree to have a neutral third party (the arbitrator) make a binding decision on the dispute. For more information on arbitration, see this page.

Private FDR: Whereby the parties to a financial remedies dispute pay for a financial remedy specialist to act as a private judge, who will endeavour to help the parties to resolve the dispute by agreement.

Collaborative law: Whereby each party has a lawyer who is trained specifically in collaborative law, and the parties and their lawyers work together to find a solution to the dispute. For more information on collaborative law, see this page.

Encouraging non-court dispute resolution

So what will change on the 29^th of April?

The first thing to say is that the new rules will not mean that it will be compulsory for the parties in a family case to engage in non-court dispute resolution. The word that the rules use is “encourage” – i.e. the intention is to encourage the parties in all suitable cases to consider the use of methods of resolution outside of court.

Specifically, the new rules will do three things, in addition to providing a new definition.

The first thing the rules will do is enable the court to require the parties to set out in writing their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings. Obviously, this will not only inform the court but also encourage the parties to actively consider using methods of resolution outside of court.

The second thing the rules will do is make provision for the court to use the timetabling of proceedings to encourage non-court dispute resolution. A key difference to the old rules here is that whereas under the old rules the court could only adjourn the proceedings to enable non-court dispute resolution to take place where the parties agreed, under the new rules the court will not need the agreement of the parties.

The third thing the rules will do is possibly the most significant, in relation to financial remedy proceedings. At the conclusion of such proceedings the court may make an order for costs against one of the parties if that party failed without good reason to attend a Mediation Information and Assessment Meeting (‘MIAM’) or non-court dispute resolution.

The intention

Exactly what all of this may mean in practice was indicated by Mrs Justice Knowles in a recent judgment, in which she referred to the new rules and said: “Going forward, parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings – the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”

Clearly, the intention is that in significantly fewer cases will the parties require the courts to adjudicate the matter for them.

How can we help?

For further information on how we can help, please see our Family Mediation page.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information.