Exploring non-court dispute resolution

There is a buzz phrase in family law which has been heard more since 29 April: non-court dispute resolution (NCDR). Under various rule changes, its meaning has been widened under rule 2.3(1) of the Family Procedure Rules (FPR) 2010 to mean ‘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. On an application to initiate specified proceedings, the court required the prospective applicant to undergo a mediation information and assessment meeting (MIAM). That is still the case but the conduct of the MIAM extends beyond mediation to all forms of NCDR (rule 3.9).

In Mann v Mann [2014] EWHC 537 (Fam), Mostyn J stated that he could not compel the parties to engage in mediation. Almost 10 years later, in a consultation in March 2023, the government proposed compulsory mediation in family law matters. This was opposed by the Law Society and Resolution. The government decided not to go ahead with mandatory mediation for separating couples but stated that it would, instead, pilot early legal advice.

Before the April revisions to rules 3 and 28 of the FPR, the rules permitted the court to adjourn for NCDR only ‘where the parties agree’.

X (Financial Remedy: Non-Court Dispute Resolution), Re [2024] EWHC 538 (Fam) foreshadowed the changes. Knowles J published a ruling so as to ensure that those involved in family proceedings (at [4]) ‘understand the court’s expectation 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’, and to signal that ‘at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable’ and the changes to Part 3 ‘will give an added impetus to the court’s duty in this regard’. Knowles J noted that the court’s general powers to compel parties in civil proceedings to engage in NCDR were highlighted by the case of Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ 1416.

Knowles J stated: ‘It may be thought that the decision in Churchill v Merthyr Tydfil is of limited relevance to family proceedings. To make that assumption is unwise. The active case management powers of the CPR mirror the active case management powers in the FPR almost word for word and both the civil and the family court have a long-established right to control their own processes. The settling of cases quickly supports the accessibility, fairness and efficiency of the civil, and I emphasise, the family justice system.’

So much for caselaw prior to the changes to the FPR. When might one see a reported case dealing with the new rules post-implementation? The wait is over. Fresh off the blocks came NA v LA [2024] EWFC 113, less than a month into the new regime. This case was heard by deputy High Court judge Nicholas Allen KC, himself an arbitrator, collaborative lawyer and sought-after private financial dispute resolution (FDR) evaluator who has done more than 80 private FDRs.

Allen noted that FPR 2010 Part 3, dealing among other things with adjournment of proceedings for NCDR, has historically been underused. He felt that this was strange given that: (i) rule 1.4(1) provides that the court ‘must further the overriding objective by actively managing cases’; and (ii) rule 1.4(2)(f) states that active case management includes ‘encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure’.

He added that rule 3.4(1A)(b) provides that where ‘the timetabling of proceedings allows sufficient time for these steps to be taken’, the court should ‘encourage parties’ to ‘undertake non-court dispute resolution’. The agreement of the parties to an adjournment for that purpose is no longer required. The court may give directions about the matters specified in rule 3.4(1A) on the application of a party or of its own initiative, he said.

In financial remedies cases, the general rule is that there should be no order as to costs (rule 28.3(5)). However, the court may depart from the general rule where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (28.3(6)). Allen stated that the power to ‘encourage’ at rule 3.4(1A) is now backed by an amendment to the costs rules. FPR 28.3 has been amended by the addition of a new sub-rule (7)(aa)(ii), which expressly makes any failure by a party, without good reason, to attend NCDR a reason to depart from the general starting point that there should be no order as to costs. This point, he said, is emphasised by paragraph 10E of PD3A, which states that ‘the court may take the parties’ conduct in relation to attending non-court dispute resolution into account when considering whether to make an order for costs in relation to the proceedings’.

In summary, Allen said: ‘This is a paradigm case for the court to exercise its new powers. I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.’ He then went on to give directions, including the staying of the financial remedy application, Form A. Pursuant to rule 3.4(3), he directed that the parties must tell the court by way of a joint letter: (i) what engagement (if any) there has been with NCDR; (ii) whether any of the issues in the proceedings have been resolved; and (iii) in light of the foregoing their respective proposals for the way forward; and upon receipt of this letter, Allen would decide the appropriate way forward.

NA v LA underlines the fundamental shift there has been since April in relation to NCDR. It is submitted that litigants who do not take stock of the changes to the FPR do so at their peril and will be at risk on costs. NCDR is indeed the family law buzz phrase of the moment.

Tony Roe, a family law partner at Dexter Montague LLP in Reading, is an arbitrator, collaborative lawyer and has trained as a mediator