The benefits of resolving family disputes outside the court room hardly need stating. Non-court dispute resolution, as it has become known, is (amongst other things) quicker, cheaper, and far less stressful.

Yet despite those benefits many couples still choose to go to court, adding to the burden of an already overworked and financially stretched court system.

The benefits of non-court dispute resolution, both to the couples involved and to the public purse, have not however gone unnoticed by those with the power to make change.

Last year the Government held a consultation on proposals for a system of compulsory mediation for family disputes involving children or finances. Whilst those proposals were recently shelved, the Family Procedure Rule Committee has been taking steps of its own to encourage parties to resolve disputes out of court.

A radical change?

In a change that could radically alter the way in which family disputes are resolved, the Rule Committee has seriously ‘beefed up’ the powers of the courts in relation to non-court dispute resolution.

The Family Procedure Rules, which govern family court proceedings, have for some time imposed upon the courts a duty to consider, at every stage of the proceedings, whether non-court dispute resolution is appropriate.

If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings be adjourned to enable the parties to obtain information and advice about non-court dispute resolution and, where the parties agree, to enable this to take place.

But these rules have not really had a great impact. Most disputes still go to court, and most of those still have to be adjudicated upon by the court.

However, that may be about to change.

On 29 April new rules will be introduced to encourage parties to resolve disputes out of court. Whilst these rules do not go so far as to compel the parties to use non-court dispute resolution they may well result in many more disputes being dealt with out of court.

So what do the new rules say?

The new rules in detail

The new rules contain four important provisions:

  1. Firstly, they provide a new definition of “non-court dispute resolution”, which will mean any method “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”.
  2. Secondly, the court will be able 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.
  3. Thirdly, the rules make provision for the court to use the timetabling of proceedings to encourage non-court dispute resolution.
  4. Lastly, and perhaps most importantly, the rules expressly provide for the court to consider as a matter of conduct, when determining whether to make an order for costs in financial remedy proceedings, any failure of a party to attend a Mediation Information and Assessment Meeting (‘MIAM’) or attend non-court dispute resolution.

These new rules were mentioned by Mrs Justice Knowles, the Family Presiding Judge for the Northern Circuit, in a recent judgment, in the case Re X.

The case concerned contested financial remedy proceedings, which are due for final hearing in June. The costs of the proceedings to date are some £581,000. The parties had not until now engaged in any form of non-court dispute resolution, a failure that Mrs Justice Knowles described as “utterly unfathomable”.

Hopefully, and despite the late stage in the proceedings, the parties have now agreed to attempt alternative dispute resolution.

Commenting upon this, and upon the new rules, Mrs Justice Knowles said:

“Non-court dispute resolution is particularly apposite for the resolution of family disputes, whether involving children or finances. Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children … 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.”