Inevitable move to compulsory NCDR if the new Family Procedure Rules fail to divert cases away from the court 

The Family Procedure (Amendment No 2) Rules 2023 are effective from Monday 29th April 2024. Here we cover what the rule changes mean for those in the sector.

What are the new changes trying to achieve?

These rules are designed to focus on the opportunities for resolution away from the court.  They are intended to strengthen the court’s duty to encourage and facilitate non-court dispute resolution (NCDR), where safe and appropriate, thereby giving teeth to Part 3 FPR.  

The parties/court users, the professionals advising them, and the judiciary are expected to consider NCDR at every stage. New pre-action protocols in the private children and financial remedy spaces, which we are in the process of finalising, will closely follow these rules. 

If the new rules fail to achieve their objective, the move to some form of NCDR mandation may become unstoppable, particularly in the light of Churchill v Merthyr Tydfil.  Lawyers, therefore, need to sit up and take notice of the new landscape. 

What do professionals need to know?

1) The definition of ‘non-court dispute resolution’ at FPR 2.3(1)(b) is widened 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.’

Lawyers’ negotiations, whether without prejudice or open, although to be encouraged, will not be a form of NCDR within the new definition.  Lawyers will be unable to self-certify that there has been NCDR by virtue of negotiations with one another unless they have been in the collaborative process.

2) MIAMs – authorised providers can be found on the FMC register

The number of MIAM exemptions has been reduced, and when claimed, evidence of exemption will be required at issue of proceedings.

Unless exempt, lawyers should ensure their clients are MIAM compliant. I recommend that both applicants and respondents, including those already in the court system, obtain a MIAM. The MIAM is not just a tick-box exercise; it is a fulsome explanation of all forms of NCDR and an opportunity for signposting to support and other services, which is extremely beneficial to families particularly where there are children.  MIAM compliance may protect your client from a costs order.

3) The new Court Form FM5 seeking views on NCDR – FPR 3.3 (1A)

‘When the court requires, a party must file with the court and serve on all other parties, in the time specified, the new form setting out their views on using NCDR as a means of resolving matters raised in the proceedings.’

4) Increased use of stays / adjournments – FPR 3.4 (1A) – the agreement of the parties will no longer be required

‘where the timetabling of proceedings allows….., the court may adjourn proceedings to encourage parties to undertaken non-court dispute resolution.’ 

5) New costs provisions in financial remedies – FPR 28.3

‘the court must have regard to any failure by a party, without good reason, to:

  • attend a MIAM or 
  • attend non-court dispute resolution – This provision will apply equally to applicants and respondents.  It is also expected to include compliance with the incoming pre-action protocol.

6) The increasing importance of Part 3 correspondence.  This may be brought to the attention of the court in respect of case management and costs

  • Engage in open NCDR correspondence – see contentious probate case Jones v Tracey – Master Marsh determined that correspondence between solicitors to consider ADR is to be treated as open even if written without prejudice [2023] EWHC 2256 (Ch).
  • Respond to an invitation to engage in NCDR in a considered & timely fashion.

7) Read this short and recent judgment of Mrs J Knowles Re X (Financial Remedy: Non-Court Dispute Resolution) 

It does not name the solicitors’ firms, but future judgments almost certainly will, particularly in the climate of transparency and increased reported cases.

‘this judgment is for those involved in family proceedings, to understand the court’s expectation, that a serious effort must be made to resolve differences before they issue and at any stage of the proceedings …. I want to signal that the court will be active in considering if NCDR is suitable…. The FPR changes will give added impetus.’

‘it may be thought that the decision in Churchill v Merthyr Tydfil is of limited relevance to family proceedings. To make that assumption is unwise’

‘I have learned today that the parties never engaged in any form of NCDR before issuing – a failure I regard as utterly unfathomable’

It is the responsibility of all of us working with separating families, to use our skills and talents to resolve matters away from the court, where it is safe and appropriate to do so… ‘let’s get this Part 3 started’!

The new court forms will be available on 29 April 2024.