Today, 29 April 2024, significant changes to the Family Procedure Rules (FPR) are coming into effect which enhance the court’s powers in relation to ‘Non Court Dispute Resolution’ (NCDR). The new rules place a greater expectation on parties to consider non-court based methods to resolve their private law family disputes.
These changes mark an important move towards encouraging separated parties to resolve disagreements relating to their finances or children outside of the traditional court process.
What are the changes?
1. A new definition
From 29 April the definition of ‘non court dispute resolution’ in FPR 2.3(1)(b) will be expanded to cover ‘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 Financial Dispute Resolution process) and collaborative law”. The previous definition of NCDR only specifically named mediation.
Whilst there was previously an obligation on separating parties to attend a Mediation Information & Assessment Meeting (MIAM) before they commenced court proceedings, this new encouragement to consider all other forms of NCDR is reinforced by an additional requirement that MIAMs providers must ‘indicate to those attending the MIAM which form, or forms of non-court dispute resolution may be most suitable as a means of resolving the dispute and why’ and provide them with information as to how to proceed with such methods. The exemptions available to avoid considering NCDR are also more limited.
2. A new form
The court now has the power to require a party to produce a form setting out their views on using NCDR to resolve matters signed by a ‘statement of truth’. The form is to be served on an ‘open’ basis meaning it can be seen by the court, so the parties cannot shy away from NCDR and must make their views on it clear. The objective is to facilitate meaningful consideration between the parties as to what might be an appropriate mode of NCDR to resolve their dispute.
3. Judicial encouragement of NCDR
The court will now be able to adjourn court proceedings where ‘the timetabling of proceedings allows sufficient time for these steps to be taken’ to encourage parties to undertake NCDR. The agreement of the parties to such an adjournment is no longer required.
4. Cost sanctions
Whilst the general rule as to costs in financial remedy proceedings is ‘no order as to costs’, the court does have the power to order one party to pay the other party’s costs if it considers their conduct warrants a penalty in costs. Costs orders based on conduct have historically been quite rare, however the courts are increasingly flexing their muscles when it comes to making costs orders against parties who, without a good reason, have failed to consider or put forward realistic open proposals for settlement. The new FPR changes now enable the court to take into account, as a matter of conduct, a party’s failure to attend a MIAM or engage in NCDR without a good reason when deciding on whether to make a costs order. This highlights the importance of parties complying with the new NCDR rules or risk being penalised in costs if they fail to comply.
How will these changes affect my separation?
Whilst the full effect of these rule changes remains to be seen, a clear indication of how judges will interpret them has been shown recently in the case of X v Y [2024] EWHC 538 (Fam). This decision predated the rule changes, yet the court nevertheless adjourned the proceedings to enable NCDR to take place. In her judgment Mrs Justice Knowles stated that:
“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 to resolve 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.”
The important message is that parties need to be alive to considering NCDR as a means of resolving their dispute both at the outset and throughout court proceedings, and that failure to do so may be penalised in costs. Despite the changes, the Court cannot force the parties to engage in NCDR, it can only make time and space for it (by adjourning the proceedings to allow for NCDR) and penalise in costs a party’s failure to reasonably engage in NCDR. ‘Reasonably engage’ is important as NCDR will not be suitable for every case – for instance mediation is often not suitable in cases involving domestic abuse or non-disclosure. The parties will now need to fully justify their reasoning to the Court for not pursuing NCDR.
How we can help
At Fladgate, our four partners, Hetty Gleave, Catherine Costley, Teresa Cullen and Joshua Moger, are all specialist practitioners working in all forms of NCDR. In addition, Hetty Gleave and Teresa Cullen are experienced children and finance Mediators and are able to offer face to face, shuttle or hybrid Mediations including with the parties’ own solicitors being present. They are also trained and experienced Collaborative practitioners.
For more information, please do contact the author of this article, Anna Wakeling, or any of the four partners above, by email, or alternatively by telephone on +44 (0)20 3036 7000.
