By: 26 April 2024
Implications of new family law rules: a shift towards mediation

Carmelita Ardren is head of family, children and divorce at Raworths in Harrogate.

 

“…. Like running up the down escalator” – that is how the president of the family division, Sir Andrew McFarlane, described the workload of the family court in 2019.

Since then, the impact of the pandemic has compounded this, creating a perfect storm of delay and expense at one of the most difficult times of a person’s life – when going through divorce and separation.

We have long been firm advocates of finding alternative ways of resolving private family disputes. In all private family law cases, whether financial or concerning children, authorities will soon take steps to actively ensure that parties have properly considered alternative ways of resolving family disputes.

 

What is changing?

From the 29 April 2024, judges in all financial and private cases will be asking both parties to actively explain why non-court based dispute resolution (NCDR) is not suitable in their case.

The definition of NCDR has also now expanded to include mediation, collaborative law, early neutral evaluation and arbitration. The judges will wield the power to adjourn any hearing to facilitate NCDR. Thus, while you cannot be “compelled” to attend alternative dispute resolution, you will need to have a very good reason why not.

Be warned, if a judge considers such reasons not to be sufficient, the party “unreasonably refusing” to attend may end up on the wrong side of a costs order and indeed the rules have been changed to reflect that.

 

So, what do the new rules mean in practice?

1. NCDR is not just mediation but a wider interpretation of keeping cases out of court. The court will require any party to a court application to attend a mediation information and assessment meeting where all options will be discussed. There will be some exemptions to attending this meeting to include cases where there has been domestic abuse or if the application is an emergency. This will no longer be a tick box exercise.

2. At the point of issue, the authorities are likely to subject any new proceedings to gatekeeping to ensure proper consideration of NCDR. If a party is unrepresented, they will likely receive a list of non-court-based alternatives if they haven’t already considered them.

3. At any stage in existing proceedings (even those issued prior to the 29 April) the judge is likely to require an account of why NCDR remains inappropriate. Any correspondence (including solicitors’ letters) offering or rejecting NCDR can be produced to the court.

4. The family court has been trying to encourage greater use of mediation for years, requiring the applicant in any proceedings to attend a mediation information and assessment meeting prior to the issue. On those occasions, if either party did not want to mediate or the prospective respondent simply ignored or refused the invitation to mediate, then the application would still go ahead. While the new rules cannot mandate attendance at NCD, they do “encourage” attendance. If a party ignores or unreasonably refuses reasonable offers to attend, the normal rule, where each party pays their own costs, might not apply. The refusing party might end up paying not only their own costs but also some of the costs for the other party. The question now isn’t whether they can afford to pay for NCDR, but whether they can really afford to refuse.

 

But what about the right to a fair hearing?

The new rules state that an adjournment of the hearing can take place where the timetable allows an opportunity for those steps to be taken. Given the delays in the present court system, it is unlikely that this will be a bar to an adjournment. In recent cases, the courts have considered this and have determined that they will exercise this power in a way that is proportionate and achieves the legitimate aim of settling the dispute fairly, quickly, and at reasonable cost.

 

Will it make a difference?

Most family lawyers will take the time at the outset of the case to discuss the alternatives to court. In most cases, non-court-based solutions are far more likely to achieve a quicker and more tailored outcome. This will come at a much-reduced cost both financially and emotionally.

It is highly likely that the courts will make an example of a litigated case for this to become part of the normal conversation for family solicitors predisposed to litigation. For us, we welcome the changes as enabling us to achieve better outcomes for those going through divorce and separation.

 

Image: Provided by Anita Morris Associates.
Guest Post
This post has been contributed by a guest writer.