Rule changes steer families towards non-court dispute resolution

Family lawyers have welcomed changes to the family procedure rules coming into force today which could see more disputes resolved away from court.

Under the latest changes, parties at a mediation information and assessment meeting must be provided with information about the principles, process and different models of mediation, and other methods of non-court dispute resolution. The associated practice direction lists mediation, arbitration, evaluation by a neutral third party and collaborative law as examples of non-court dispute resolution.

The rules do not give courts the power to compel parties to attend non-court dispute resolution. However, courts will have a duty to consider at every stage in the proceedings whether non-court dispute resolution is appropriate. Parties could be asked to file a form setting out their views on using non-court dispute resolution as a means of resolving matters. Judges could take parties’ conduct in relation to attending non-court dispute resolution into account when considering whether to make a costs order.

Family lawyers welcomed the changes.

Rachel Fisher, a partner at Stowe Family Law, said the changes will hopefully continue a ‘cultural shift’ in the divorce space and reduce pressure on overwhelmed family courts. ‘The new changes place greater expectation on the separating couple, as well as family law practitioners and the courts, to continually assess whether non-court dispute resolution, for example mediation or collaborative law is suitable,’ Fisher said.

Michelle Uppal, a partner at Lowry Legal, welcomed an update to the mediation information and assessment meeting allowing parties to attend remotely, removing the excuse of non-attendance due to being abroad.  

While the new rules do not compel parties to engage in non-court dispute resolution, Evie Smyth, an associate in the family law team at Russell-Cooke, said there is undoubtedly now ‘strong encouragement’ to do so. Smyth noted that domestic abuse remains a significant exemption to a mediation information and assessment meeting, ‘although the language has shifted away from the old language of “domestic violence” to be consistent with the updated language of the Domestic Abuse Act’.

Law Society president Nick Emmerson said: 'The updated rules provide an opportunity for parties to explore all the options, including non-court dispute resolution, in resolving their dispute out of court when attending a [MIAM]. We are also pleased that the changes to the rules will retain the protections afforded to victims of domestic abuse and vulnerable parties, ensuring they do not need to engage in any form of non-court dispute resolution.'

Emmerson added that Chancery Lane continues to lobby the government to provide legal aid for private law family cases, including early legal advice. 'This would have a positive impact on diverting cases from court and be able to provide information to parties before an application is even made. We are encouraged by the Ministry of Justice’s proposals to pilot an early advice scheme and will continue to work with them on it,' Emmerson said.

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