Could a shift towards alternative dispute resolution benefit family court proceedings?

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Lady Chief Justice Carr has called for the establishment of a London dispute resolution committee to encourage guidance and developments within the area of alternative dispute resolution (ADR). We examine how this may impact family court proceedings.

Speaking at London International Dispute Week, Lady Carr suggested that courts, mediation and arbitration centres should work together. Moreover, Lady Carr outlined her expectations that the Law Commission’s proposed reforms of the 1996 Arbitration Act will be revived. This comes after the ruling in Churchill v Merthyr Tydfil, whereby the Court of Appeal gave courts powers to mandate ADR. Lady Carr pointed to the expectation that ‘judges are increasingly likely to be called upon…to consider whether to mandate the use of ADR’. The consideration, therefore, has to be which forms of dispute resolution to mandate to assist these developments.

          One must also consider this development in the context of the increasing move towards non-court dispute resolution in the family courts. NA v LA has been assessed as a ‘paradigm case’ where a judge directed a divorcing couple to use non-court resolution under new procedure rules. Exercising the new powers outlined in the Family Procedure Rules part 3 and 28 and brought into effect on April 29, 2024, the court was able to use its own initiative to give directions over non-court dispute resolution. Equally, the powers now outline that the parties’ agreement is no longer required for adjournment to explore non-court resolution. Nicholas Allen KC, sitting as a deputy High Court judge, suggested that the court has a duty to consider non-court dispute resolution, labelling it ‘appropriate’ and ‘to the emotional and financial benefit as well as to the benefit of their children’ when discussing the potential impact upon the parties. One can witness a movement towards incorporating the FPR through the continuous evaluation of alternative methods to resolve an issues. This is clearly reflected in Lady Carr’s recognition that all legal professionals should be working towards integrating such methods of resolution.  

          It is necessary that, alongside Lady Carr’s comments, judiciary and legal practitioners should become familiar with emerging forms of alternative dispute resolution and consider their application dependent on the suitability for their specific circumstances. As outlined by Lady Carr, ‘judges will need to be familiar with the different forms and their features, so that they can properly assess which is best suited.’ Family courts have historically underutilised ADR, but the personal nature of the family court system could surely benefit from integrating practices that encourage collaboration and avoid protracted proceedings that may only work to damage the family, and particularly children. If legal practitioners aim towards the integration of the resolution forms outlined, namely negotiation, arbitration and litigation, we may witness further developments of this nature in the family court.

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