Amy Scollan explores non-court dispute resolution in divorce in ThoughtLeaders4 HNW Divorce Magazine
Amy’s article was published in ThoughtLeaders4 HNW Divorce Magazine, Issue 18 (page 5), and can be seen here.
Non-court dispute resolution in divorce
In April 2024 significant changes were made to the Family Procedure Rules which enhanced the court’s powers in respect of Non-Court Dispute Resolution ‘NCDR’, formerly called ADR (Alternative Dispute Resolution).
The rule changes are the result of work undertaken by the Family Procedure Rule Committee who had the goal of considering how the rules might encourage early settlement of family disputes, whilst not quite mandating NCDR.
The provisions include:
- Expanding the definition of NCDR 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.’ (See FPR 2.3(1))
- Imposing a duty on the authorised family mediators conducting MIAMs (Mediation Information Assessment Meetings) to:
- ‘Indicate to those attending the MIAM which form, or forms, of non-court dispute resolution may be most suitable as a means of resolving the dispute and, why’ FPR 3.9(e) and
- ‘Where sub-paragraph (e) applies, provide information to those attending the MIAM about how to proceed with the form, or forms, of non-court dispute resolution in question’ FPR 3.9(f).
- Imposing a duty on the court to consider the appropriateness of NCDR at every stage in the proceedings. FPR 3.3(1A) provides that ‘when the court requires, a party must file with the court and serve on all other parties, in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings.’
- Providing powers for the court to adjourn proceedings to allow the parties to undertake NCDR. The parties do not need to agree to this – FPR 3.4(1A).
- Amending the costs rules to strengthen the court’s ability to encourage unwilling parties to engage in NCDR. They now state that a failure without good reason to attend a MIAM or NCDR is reason for the court to consider departing from the general starting point that there should be no order as to costs – FPR 28.3(7).
It remains the case that domestic abuse is an exemption from MIAM requirements.
It is hoped that these changes will redirect those who might have seen court as a default option and a natural next step if solicitor negotiations failed, into NCDR at either the MIAM stage or when the court first manages the case.
These changes are welcome, but they are not a panacea. A number of matters require thought and energy from the family law profession.
1. Risk of Abuse
More often than not, delay oftens benefits one party to a dispute.
It is a genuine risk that an abusive party (falling outside the MIAM exception), might manipulate the new rules in order to engage in NCDR to achieve further delay rather than a solution.
The other party might suspect foul play but fear that they have no alternative but to go along with the NCDR charade for fear of having cost order made against them if they were to refuse.
How can be sure that where one party is acting in bad faith that the other is not penalised in costs or delay, in a NCDR context?
Arguably, an NCDR advocate might say that bad faith on one party’s behalf might mean that they are not yet ready to address future arrangements whether through court or NCDR, and what they need is to work with a therapist or coach to get to a point where they are able to approach financial remedy claims with a clearer mind. From there, they can learn to focus on the future rather than the past - and both parties will then be better off rather than insisting on rushing
into resolving finances first. I would agree but the system needs a practical solution which protects the victims of bad faith tactics.
2. A Well-Functioning Justice System
The court system, on which the most vulnerable in society rely the most, is creaking under pressure and the cost of financial remedy proceedings can be eye-watering and out of reach to many.
Disputes in which NCDR is not appropriate, or fails, need to be able to fall back into a justice system and be swiftly determined. We all need a justice system that can operate efficiently and effectively.
The current system is plagued by delays and our judges are visibly stressed and overworked.
In respect of financial remedy cases, the number of applications made to court over the last few years have remained fairly constant (49,049 in 2021, 40,097 in 2022, and 44,564 in 2023), the service, from my perspective is in decline.
Sam Townend KC, Chair of the Bar Council said this in March 2024 in a press release:
“The justice system is a fundamental public service, but it has been starved of necessary funding for years. This is a false economy – every penny stripped from the justice sector increases costs elsewhere, through court delays and impacts on other services, such as housing, benefits, and schools.”
“The criminal and family justice systems are running at boiling point. Over the last decade, funding has declined and services have diminished while demands have increased and are set to increase further.”
As professionals in the family justice system, we need to demand that the Government invests properly in the system. I fear that the well-intentioned spotlight on NCDR can detract focus from the necessary attention our creaking court system needs.
3. The Family Justice System
As lawyers we can aim to take clients out of the court process and into NCDR, but there will always be cases which require judicial determination. The system is an adversarial one, and in order to be successful it often requires a combative approach, which seeks to advance your own client’s case and capitalise on the weakness, flaws and errors in your opponent’s. Discrediting your opponent, in order to boost our own credibility before the court, is a standard litigation tactic.
A by-product of the adversarial system is polarisation in the parties’ positions away from resolution.
The President in his ‘A View from the President’s Chambers: July 2024’, wrote about children’s matters, stating:
“At present the system is overloaded and inevitable delays in reaching a conclusion, which are obviously unwelcome, have the potential to make matters worse rather than better for a child. But, even if delay were not an issue, a system that pitches one parent against the other in an adversarial setting is likely to exacerbate more than it heals dysfunctional family relationships.”
In my view, this comment is equally applicable to financial remedy cases, and whilst we can try and ameliorate it, we cannot change the system’s fundamental flaws. This needs to be recognised by the judiciary, when they express concern about the costs incurred and approach taken by some parties.
4. Lawyers
It is undeniable that the judiciary are frustrated in the way some of the disputes are litigated through the courts. This frustration can be seen in comments from recent judgments:
Crowther v Crowther [2021] EWFC 88, Mr Justice Peel said:
“The lack of cooperation between the parties and their lawyers was very apparent. The mercifully limited exposure I have had to the inter-solicitor correspondence was sufficient for me to see that there appears to have been an almost complete breakdown of constructive communication.”
“Each party thinks the other is, to use their own words, “out to destroy” them. These proceedings have been intensely acrimonious. They, and their lawyers, have adopted a bitterly fought adversarial approach.”
Lauryn Goodman v Kyle Walker [2024] EWFC 212, His Honour Judge Hess said:
“It is difficult to tell how much lawyers’ time will be needed to draft and implement my order. It will depend on how many arguments there are and, whilst I am attempting to produce clarity, the history of this case suggests that the lawyers will find something to argue about.”
Undoubtedly, lawyers do not have executive control over their instructions, and when lawyers are in receipt of difficult instructions, and presenting difficult cases to the court, they can find themselves to be the subject of the court’s frustrations. Our clients are free to put whatever case they want before the court (subject to the court’s case management powers) and indeed it is central to the rule of law that they are free to do so. It is our job to help them whilst acting in their best interests.
It can sometimes feel that Judges would prefer for only reasonable, measured and fair positions and arguments to be put to them. It is understandable why Judges would want lawyers to make their jobs easier rather than harder, as it would streamline cases, which is in the parties’ best interests.
We need to do more to tread that difficult line between following difficult instructions in a way that upholds our duty to the court and acts in our client’s best interests. This is not work for the faint hearted.
Acting with aggression or with a lack of co-operation does not help the court and cannot be said to be in our own clients’ best interests. Francis J made this point in Helliwell v Entwistle [2024] EWHC 740 (Fam) when he stated:
“Even if a litigious client insists upon a difficult, bad-tempered and stroppy letter, … There is a duty upon solicitors not only to their client but to the court, and that duty requires them to temper the tone and not to worsen it.”
If the lawyer’s job is well done, their work will not be visible to the Judge. The Judge will have no insight into how a lawyer might have guided the client away from presenting an unhelpful argument to the court.
In conclusion, NCDR has been bolstered as means of resolving conflict by the recent rule changes, and it is clear that it will only become an even more essential part of the family justice system as time progresses. However, this does not mean that we can neglect reform to the court system which is urgently needed. Furthermore, we as lawyers must work to better assist the court in cases which need a judicial determination.