Family Procedure Rule changes: what does this mean? 

This article also appears on Claire Withers’ website, which can be found here.

Claire Withers, Partner, Family Law 

Consideration of Non-Court Dispute Resolution (NCDR) also known as Alternative Dispute Resolution (ADR) has been encouraged in family law for many years. However, recent changes to the Family Procedure Rules (FPR, Parts 3 and 28), which came into effect on 29^th April 2024, now places more stringent requirements on couples who are considering or may already be in Court proceedings to consider NCDR. 

The definition of NCDR has been widened to include mediation, arbitration, evaluations by neutral third parties (such as private financial dispute resolution process) and collaborative law. 

What are the new rules? 

• The Court requires parties to file and serve a form (FM5) setting out the NCDR option the parties have considered or attended and why the Court process is appropriate. This must be filed seven days before a first hearing in both children and financial proceedings. The parties can be required to update these at any point the Court asks. 

• The Court will now be encouraging parties to undertake NCDR where the timetabling of proceedings allows sufficient time, which will be in most cases. 

• In financial proceedings the new rules will make a failure, without good reason to engage in NCDR a reason to consider departing from the general principle that there should be no order as to costs. This could mean an increase in cost orders against parties who refuse, or do not fully engage with NCDR. 

• Whilst the Court cannot require the parties to attend NCDR, the Court has a duty to consider at every stage of the process whether NCDR is appropriate.  

• There has been a recent financial remedy case in which the Judge published a ruling to ensure that those involved in family proceedings understand it is 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 the Court may refer the parties to NCDR.  

What are the advantages of NCDR? 

• Parties are in control of the timetable for resolving the dispute. 

• Parties can choose the format most appropriate for them, taking into consideration the nature of their relationship, costs, and complexity. 

• If a dispute is resolved without the need for Court attendance, both legal costs and time could be minimised and saved. 

• The requirement of parties to attend a Mediation Information and Assessment meeting (MIAM) prior to the issue of children or financial proceedings allows parties to fully understand the benefits resolving matters without the need for Court proceedings. 

• There has been an increase in mediators, arbitrators and professionals offering early neutral evaluations which provides parties a wider choice of options. 

Overall, these new changes regarding NCDR are positive and encourage parties to consider all forms of NCDR, whether that is a collaborative approach such as Mediation, a binding decision through Arbitration or a more direct and legally supported resolution via early neutral evaluation.