The Family Procedure Rules (FPR) were changed in April 2024 to put even greater emphasis on resolving family disputes through Non-Court Dispute Resolution (NCDR), formerly also referred to as Alternative Dispute Resolution (ADR).

While some clients prefer going to court, believing that a court verdict carries more weight, there has been a movement in the courts and as directed by legislation, towards resolving family disputes through out-of-court settlements. These are often quicker, less stressful, and less expensive. They have the added benefit of relieving load on the court system.

The new rules require that all family cases be considered for out-of-court resolution.

Non-Court Dispute Resolution (NCDR)

NCDR is resolution achieved through methods other than a court process, consisting of mediation, arbitration, evaluation by a neutral third party, and / or collaborative law.

The new FPR rules mandate court scrutiny of MIAM (Mediation Information and Assessment Meeting) attendance and NCDR activity. Additionally, there is a stronger emphasis on attending a MIAM. While it is still not mandatory, there are now fewer exceptions allowed, and evidence is required for any exemptions claimed.

Gaps between hearings in the court proceedings will be used for ‘judicial nudging’ to encourage MIAM and NCDR. At every court hearing, the judge will be assessing if NCDR is appropriate and if not why not. Clients may be required to engage in NCDR before being allowed to continue with the hearing.

NCDR vs Seeking Resolution Through the Courts

Some clients still prefer going to court to resolve their issues, believing that a judge’s decision holds more weight, however, out-of-court settlements are usually quicker, less stressful and less expensive.

There’s also the personal factor that can lead people to prefer a court hearing. Relationships that have failed may end with hostility between the parties and attempts to resolve outstanding issues result in conflict. The legal system is adversarial, which suits the mood of battling ex-partners.

It also adds to the conflict and the stress experienced by them, and that can have a knock-on effect on the children.

Court Case Load

It should also be noted that the total case load being heard by the courts is so much that there are long delays in getting court dates. According to one assessment the average time to resolution in court is 435 days, compared to 110 days in mediation. The difference in cost was determined to be on average £1000 with mediation, or £30,000 through the courts. Delays are expensive and stressful.

Role of Solicitors and Legal Professionals

As with the public at large, some solicitors prefer a confrontational approach to negotiation, often leading to a court hearing. 

With the new FPR rules placing greater emphasis on NCDR, solicitors are being encouraged to embrace this approach. With the judicial encouragement of NCDR, reluctant solicitors will be required to go along with it. Simple refusal to engage in mediation, or superficial compliance with the requirement will no longer be accepted. Clients must provide detailed justification why they believe NCDR is inappropriate for them. Clients will be required to file with the court their views on using NCDR.

With the applicability of NCDR being reviewed through the different phases of a court hearing, once there is more information about the case before judges they are better able to assess the merit of referring the litigants to NCDR.

Exemptions to the Requirement to Attend MIAMs

The requirement to attend MIAMs is not absolute. Where there is concern about domestic abuse, or if one or both clients are unable to attend meetings, or lack the facilities for remote meetings, exemptions can and will be made.

If there is a suspicion of domestic abuse, the mediator will simply report to the court that NCDR is not appropriate. The mediator will not expose the client by specifying domestic abuse in the report.

The Role of Mediation

For now, mediation is still not mandatory and in specific cases never will be, but there is stronger encouragement to engage in it, and more rigorous proof required to avoid it.

It’s been mentioned before, but is worth repeating that NCDR is cheaper, quicker and less stressful than taking the matter to court.

It’s worth noting that the refusal of one of the parties to attend a MIAM will not be allowed to delay proceedings. A judge will order an assessment, investigation, and report.

Government Mediation Grant

The government has introduced a voucher of up to £500 for child arrangements mediation. This will encourage people to pursue mediation when before they may have been more inclined towards in-person litigation.