The Surrey Initiative
The Surrey Initiative
To increase the use of out-of-court dispute resolution processes thereby
- harnessing the skills of family law professionals including lawyers and others
- improving the experience of separating and divorcing families
- leading to improved outcomes for families particularly children
- easing the burden upon the court system
By putting Part 3 of the Family Procedure Rules front and centre, requiring the parties, their lawyers and the court to apply Part 3 at all times with evidence that they have done so.
Hopefully leading to –
- an administrative / case-management role for the court but only where required ie for a timetable
- the freeing up of court time for those cases that genuinely require the state’s intervention or adjudication
- a new robust Part 3 Protocol with ‘teeth’ to include possible amendment of the Family Procedure Rules thereby increasing the court’s powers to refer to an out-of-court (DR) process with other sanctions where necessary
Practitioners – what you need to know
Remind yourself of the requirements of Part 3 FPR (below), ensure that you have made your client aware of Part 3 and the range of DR options available evidencing that you have done so throughout the conduct of the case. Remember consideration of Part 3 is continuous – it is not just a one-off requirement prior to issuing proceedings – consideration must be evidenced throughout the entire conduct of the case.
Failure to consider DR options with your client could give rise to a client complaint, an inability to recover your fees, negligence and / or disciplinary proceedings, wasted costs orders and a breach of the Code
- Invite other lawyer / LiP to engage in DR process/es setting out your rationale as to why one / a number of DR processes may be suitable (see below).
- If invited to engage in a DR process consider the various DR options with your client and reply to all invitations within 14 days (requesting an additional 7 days if required). The response/s to include proposed arrangements to engage in a DR process, an offer of alternative DR process/es setting out your rationale or an explanation as to why the invitation is being declined and why you are not offering an alternative DR process/es.
- NB correspondence / discussions as per 1. & 2. above (‘the Part 3 communications’) must be open and contain the certificate. Some practitioners will prefer to correspond but equally some prefer to speak with the other lawyer / LiP which is encouraged. A note should be taken of the discussions and the certificate completed to confirm that you have provided your client with a copy of the note.
- At all hearings the court will either call for a copy of the Part 3 communications or be invited to consider them. Parties and their lawyers must expect therefore to explain why a DR process is not being used.
- The court may increasingly stay / adjourn the proceedings to enable the parties to engage (or explore the possibility of engaging) in a DR process.
- The court may increasingly express its judicial displeasure if there have been no reasonable invitations to engage or such invitations have either been ignored or unreasonably refused.
What you might expect of the court
- Awareness of and support for this initiative
- Increased awareness of and knowledge about the sophisticated range of out-of-court options available
- Judicial encouragement for the parties to explore and engage in a DR process to include all and any practical arrangements to be made eg funding, the choice of DR professional, geography etc
- Justification as to why a matter is in court ie parties and their lawyers may increasingly be required to show cause why the case is within the court system
- A request to see the Part 3 communications with judicial comment thereon
- An increased use of adjournments / stays to allow time to explore and hopefully engage in an appropriate DR process [an Ungley Order]
Please see links below: