In brief
- In most family law cases, the courts now expect parties to engage in non-court dispute resolution ("NCDR") before issuing court proceedings – an exemption to that is where there is evidence of domestic abuse between the parties.
- The exemption is for good reason, given the risks that NCDR can pose for some survivors.
- NCDR is however more flexible and creative than ever and arguably offers benefits over court proceedings even where there has been a history of abuse.
The role of NCDR in family law
29 April 2024 marked a key update to the Family Procedure Rules 2010 in that the court now expects (rather than just encourages) parties to explore non-court dispute resolution ("NCDR"), with the risk of costs penalties if they do not.
The case of X v Y [2024] EWHC 538 made clear what the court expects of parties, i.e. that "a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate”. The judge in NA v LA [2024] EWFC 113 also made clear that, in financial remedy proceedings, non-disclosure by one party cannot be used as a carte blanche by the other to avoid engaging in NCDR.
In cases involving domestic abuse, the survivor is typically able to claim an immediate exemption to the obligation to explore NCDR. This is due to the risk of the survivor being re-traumatised within the NCDR process – whether that be a survivor being seated across the same table from a perpetrator of physical abuse at a mediation, a survivor having to rely on a financially controlling partner to agree to pay for arbitration, or the more subtle difficulties that a mediator can face when the power dynamics between a couple contains an abusive element.
However, as pressures on the court system remain ever-increasing and with some advocates of NCDR pointing to methods whereby safety can still be promoted, the question arises as to whether there is more of a role for NCDR in domestic abuse cases than one would initially think.
Current NCDR position in domestic abuse cases
As above, typically, where there is evidence of domestic abuse between parties, the court would not expect them to engage in NCDR. This does not preclude parties in such cases engaging with NCDR if they and, where relevant, the mediator deems it appropriate but rather it acknowledges, from the outset, that the court system may provide a survivor with a safer and more empowering environment for dispute resolution.
However, there is now greater flexibility and creativity within NCDR than ever, and NCDR can be seen to offer survivors certain benefits over the court system.
Online mediation
The embracing of online meetings is one of the few positive impacts of Covid-19. Virtually all family law mediators now offer online sessions, meaning parties don’t have to be physically present in the same room, building or even country. This can empower survivors to engage in mediation, as they avoid the risk of seeing their former partner face-to-face.
Shuttle mediation
This can take place either online or in-person and is typically seen as a safe and effective option for survivors as it doesn’t involve any direct communication or meeting between the parties – instead, the mediator moves ("shuttles") between the two parties to take their instructions and pass information/proposals between them.
Hybrid mediation
This involves an individual still jointly instructing a mediator with the other party but also instructing their own solicitor. When attending mediation, the individual can either have their solicitor physically present with them, or available on the phone for them to seek advice from during the session – typically this would be within shuttle mediation. Hybrid mediation like this can empower a survivor as they have the benefit of immediate legal advice on the proposals being made by the other party within mediation.
Arbitration
Mediation isn't the only option. Arbitration is increasingly popular across all types of family law cases, as it provides a more confidential forum and typically a quicker timetable to resolution than court proceedings (in contrast to the increasing transparency and listing delays within the court system). For domestic abuse cases, arbitration can be suitable as the survivor can instruct a solicitor and barrister to make representations on their behalf at the arbitration hearing, and they can benefit from a quicker resolution (by way of a binding arbitral award), something which can be particularly important if abuse is ongoing. Survivors may need to give witness evidence within arbitration, but supportive measures can be put in place such as a screen being put up between the parties so they cannot see one another when giving evidence (or even for the duration of the arbitration).
Private Financial Dispute Resolution (FDR)
These are often used in resolving financial matters – they are the out-of-court equivalents of the FDR hearing. It involves an experienced barrister, being instructed to act as the "judge", hearing submissions from each party, or, if they are represented, their barrister (on paper and orally), and providing a non-binding "indication" of what they would order if they were a judge at a court-based final hearing, based on their experience. The parties, via their solicitors and barristers if they have instructed them (with no direct contact between the parties themselves) are then encouraged to negotiate a settlement in light of the indication.
Again, survivors can be empowered by the private FDR as they can be supported by advice from legal representatives if they wish, meaning they need not engage with the other party themselves, nor do they give any witness evidence (which can otherwise be daunting). Moreover, in both private FDRs and arbitration, third-party experts can be instructed to opine on values of assets, which arguably adds a further degree of objectivity, and assists with power dynamics in circumstances survivors are often otherwise reliant on an abuser's information and knowledge. The use of an independent social worker in children proceedings may be seen to have a similar neutralising effect.
Domestic abuse – is there a role for NCDR?
NCDR no longer just constitutes two individuals sat with a mediator around the same table: rather, there are now a range of NCDR options, many of which may be appropriate in cases involving domestic abuse. As ever, however, the suitability of NCDR in such cases depends on the specific circumstances and individuals involved.