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Strengthening Non-Court Dispute Resolution

Posted on 29 April 2024

Family disputes, many of which are sensitive and highly personal, have long been recognised as often being best resolved away from the formal court setting. Non-court dispute resolution (NCDR) has been advocated in family law for many years. However, recent changes to the Family Procedure Rules (FPR) mark a significant shift towards more actively encouraging parties to consider alternative methods for resolving disputes outside of traditional court proceedings.

The revised FPR now provides a more comprehensive definition of "non-court dispute resolution", which includes a range of methods such as mediation, arbitration, evaluation by a neutral third party, and collaborative law. This expansion highlights the importance of considering a variety of avenues for resolving disputes.

Key changes to the Family Procedure Rules

A notable change is the new requirement for parties to consider NCDR and to demonstrate that they have done so, not only before initiating a case but also throughout its duration. Before the first court hearing, parties are now mandated to file a form with the court and share it with all parties, detailing their engagement with NCDR, or if not, the reasons for this and, crucially, why they believe they require the court's intervention instead of resolving the matter through NCDR. This ensures that alternative resolution methods are continuously considered by the parties, and reinforcing the judge's duty to consider such methods throughout the case.

Before starting a court application, parties are expected to attend a Mediation Information and Assessment Meeting (MIAM), unless they meet one of the specified exemptions. MIAM providers are now required to inform parties about suitable NCDR options and provide detailed information on each. The exemptions for attending a MIAM have been narrowed, and evidence must now be provided for any exemption claimed. That said, an exemption still applies in cases of domestic violence. The definition used in this exemption has been broadened from "domestic violence" to "domestic abuse", in alignment with the provisions of the Domestic Abuse Act 2021. Additionally, “significant financial hardship” in cases involving domestic abuse can also now be taken into account.

Previously, cases could be adjourned for parties to consider NCDR if they agreed to do so. A new rule now allows the court to adjourn proceedings for NCDR even without explicit agreement between the parties. Failure to engage in NCDR without good reason can be taken into account by the court when deciding on cost orders. This provision aims to encourage active participation in alternative methods and to discourage unjustified resistance.

The legal landscape is evolving to promote the use of alternative methods for resolving family law disputes. While not suitable for every family, it is hoped that by encouraging those who can resolve their issues outside of court, the judiciary's efforts will be more focused on cases that require judicial intervention. These changes are expected to have a positive impact on issues such as court delays and backlogs, and to improve access to justice for families in need.

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