Non-Court based Dispute Resolution: A continued default, not an alternative
As Resolution trained Family Lawyers, it is in our DNA to introduce Mediation, and all other dispute resolution options to our clients, subject to any prevailing specific needs and circumstances.
Our experience has taught us that one can rarely presume that litigation is an inevitability. Our clients stay much more in control of both their legal outcomes and the extent of their legal expenses when adopting a path, or paths, that differ from, or indeed incorporate, Court action.
As a Collaborative Lawyer (Worthing Collaborative Family Pod), I promote non-adversarial, participatory work. My clients take the lead in setting the agenda for discussions, and I advise and guide them to an equitable, workable, and kind outcome.
Court adjudication has its rightful place in the range of forums to be considered and when we represent our clients in proceedings, we do so robustly, with an unwavering commitment. We have an undaunted appreciation that sometimes the Court is the best forum, but perhaps only after other paths have been genuinely explored or perhaps by acting in conjunction with them. This is especially true when it comes to the versatility of Mediation and its potential ongoing benefits at any stage in a dispute.
This is at the heart of the following key April 2024 changes to the various Family Procedure Rules.
- Parties will be required to complete a Court Form, setting out their views on engaging with non-court dispute resolution (see new rule under amended FPR 3.3(1A)). This form must be filed with the court, served on all parties, and verified by a statement of truth.
- That the definition of “non-court dispute resolution” in FPR 2.3(1)(b) will be expanded 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 definition will therefore go beyond just mediation.
- That MIAM (Family Mediation Information and Assessment Meeting) providers (effectively Mediators) will be required to inform attendees about which form(s) of non-court dispute resolution may be most suitable and why, as well as provide guidance on how to proceed with those methods – FPR 3.9(2) amended.
- That it will no longer be required to have the agreement of the parties when adjourning the proceedings in order to encourage parties to undertake non-court dispute resolution. Instead, where the timetabling of proceedings allows sufficient time for these steps to be taken, the court may adjourn the proceedings – FPR 3.4(1A) amended.
- The court may now consider, when determining whether to make an order for costs, any failure by a party, without good reason, to attend a MIAM or non-court dispute resolution.
The actual MIAM and related Rules and guidance are found here: Practice Direction 3A – Family Mediation Information and Assessment Meetings (MIAMs)
These changes are intended to promote the early resolution of private family law arrangements outside of court. They are not wholly revolutionary and are, in the main, an extension and expansion of what the legal community has been promoting in any event.
It was some 10 years ago, at least, when practitioners were tasked with informing clients that attendance at Mediation (at least an attempt at the same in reality) would be a pre-requisite to being able to make an application to the Court. Furthermore, we took great care in advising, and still do, that Mediation should not be treated a hoop through which to jump and then make a Court application anyway, but as a concerted and honest endeavour to resolve matters in a conciliatory and, as relevant, child-focused way.
If you have a Family issue and would like to know more about the options available to you, please contact the author, Jacqueline Mensah on jnm@bennett-griffin.co.uk or her colleague and fellow experienced Family Lawyer, Sarah Pennicott, on slp@bennett-griffin.co.uk. We look forward to helping you find the right path, or combination of paths, for you.