We caught up with Senior Associate Solicitor Stuart Barton regarding both the benefits & disadvantages of Non-Court Dispute Resoloution

For decades, family lawyers have been actively preaching to clients about the benefits of Non-Court Dispute Resolution (NCDR). In simple terms, NCDR refers to a range of methods that are designed to help parties resolve their dispute outside of the ‘traditional’ route of contested court proceedings. Mediation, arbitration and early neutral evaluation represent just three examples of NCDR. There are several others. The benefits of NCDR are clear. Cases can be resolved more quickly and with less expense. Parties also critically retain a sense that they have contributed towards an agreed outcome, rather than spinning the judicial lottery wheel and ending up being stuck with a determination from a judge that may ultimately please neither one of them.

Whilst the advantages of NCDR are readily apparent, it would be wrong to describe it as a universal remedy, suitable for anybody involved in family court proceedings. NCDR is unlikely to be suitable in cases where there has been domestic abuse and coercive control.

Given pressures within the court system (which have continued to increase since the Covid 19 pandemic), it is of no surprise that the family court has been an enthusiastic promoter of the benefits of NCDR. For example, judges in financial remedy proceedings have been only too pleased to allow divorcing couples a chance to settle their dispute through the mechanism of a private Financial Dispute Resolution appointment. This has eased some of the pressure on contested court listings and freed up some degree of judicial time. However, the overall view of the family court is that there are still too many cases that should never get to court because NCDR could resolve them at the outset. There are also many cases that should not progress to an expensive and time-consuming final hearing when NCDR could bring about an earlier and more cost-effective solution.

Despite the advantages of NCDR, experience suggests that the previous use of NCDR in family court proceedings has been hampered by the court rules themselves. The court has previously lacked the power to compel parties to use NCDR methods, such as mediation.  The family court has always been free to encourage parties to pause their dispute so they can try NCDR but only if both parties agree to that course of action.  With effect from 29 April 2024, this is no longer the case. Revisions to the court rules now provide as follows:

• the court has a duty to consider, at every stage in the proceedings, whether NCDR is appropriate;

• the court will want to know the parties’ views on using NCDR as a way of resolving their dispute; and

• the court has general powers to adjourn any case, in order to encourage the parties to attend NCDR.

To give added ‘teeth’ to the above revisions, further changes in the court rules apply to financial remedy proceedings for divorcing couples. Namely, “the court may take the parties’ conduct in relation to attending non-court dispute resolution into account when considering whether to make an order for costs in relation to the proceedings”. This is an explicit warning to divorcing couples that if they refuse to attend or engage in any form of NCDR without a good reason, they are vulnerable to a punitive costs order against them.

As with any change to the court rules, family lawyers were keen to see whether the above made any practical difference in reality. The answer came more quickly than most anticipated and at this stage, it seems that the answer is yes. In the case of NA v LA, heard on 23 May 2024, Nicholas Allen KC (sitting as a deputy High Court Judge) considered a dispute between a husband and wife relating to injunctive orders and the preservation of matrimonial property. The hearing took place shortly after the wife had also commenced divorce proceedings and, without any prior warning to the husband, initiated financial remedy proceedings to boot.

Allen noted that the wife had spent £125,000 already and estimated her future costs between 23 May and the next hearing at a further £60,000. The husband’s costs were more limited but it was clear that he would face a similar outlay for the next part of the court proceedings. Giving judgment on 24 May, Allen stated, “…this is a paradigm case for the court to exercise its new powers. I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.” He therefore stayed (paused) the proceedings and directed that the parties must inform him by 4 July 2024 what engagement there had been with NCDR, the outcome of such NCDR and their respective proposals for the way forward.

Of course, one decision in an expensive and high-profile case gives a very limited evidence-base for anybody to evaluate the impact of the revised court rules upon NCDR. However, the fact that the revised rules have been applied so promptly since their introduction is telling. Parties who unreasonably refuse to consider NCDR in financial remedy proceedings should consider themselves warned – a costs order against them may well follow. These changes are here to stay and it is vital that parties fully explore the use of NCDR both before and during any form of family court proceedings.

At Watson Ramsbottom we fully recognise the benefits that NCDR can bring. We can offer comprehensive advice upon all methods of NCDR and identify the best option for your circumstances and budget.