Alternative dispute resolution is an increasingly valued technique used in family law (see our article on Lady Chief Justice Carr’s call for the establishment of a London dispute resolution committee) that allows for parties to try and work out their issues away from court. It essentially involves forms of resolution that avoid complex, protracted court proceedings and aim to solve any issues between parties as amicably as possible.
Naturally, alternative dispute resolution will not always be an option depending on the circumstances of your issue, but it is a requirement that applicants must attend a Mediation Information and Assessment Meetings (MIAMs) before making certain kinds of applications to obtain a court order in some family proceedings- such as a private child arrangements order, or an application for certain financial orders. Exemptions for this include instances where there has been domestic abuse, for example. As this is a constantly developing field, there have been some recent amendments that need examining.
We recently attended East and West Sussex Resolution’s Dispute Resolution Day, where we were given a brilliant outline by Nicholas Allen KC of updates to the Family Procedure Rules regarding alternative dispute resolution. Namely, there have been important revisions to both FPR part 4 and part 28, effective since late April 2024. As outlined, mediators undertaking Mediation Information and Assessment Meetings (MIAMs) are required to inform the parties of non-court options to resolving matters, but to also go through other options and explain which one may be best suited for the parties based on their specific circumstances. In terms of exemptions, the rules have been amended to reflect the current law, such as broadening the definition of domestic abuse, or to tighten the use of the exemptions. It is also now harder to claim an exemption based on mediators being unavailable in the local area, as many can now attend remotely. Should alternative dispute resolution not be attempted, potential costs can be awarded and judges will stay proceedings in order to ensure that an attempt at ADR can take place. As outlined in Churchill v Merthyr Tydfil CBC [2023], it may be permissible in some situations for the court to order that parties attempt NCDR before seeking a judicial determination; however, this must be done in a way that does not affect the article 6 right to a fair hearing and must be proportionate to the aim of settling the dispute fairly.
At Brighton & Hove Law, we always prioritise including alternative dispute resolution in our work, as we recognise the importance of potentially staying away from complex court proceedings. In family law, these methods can be particularly useful as there is often a very personal element to proceedings that can benefit from removing the tension and stress of a court environment. We are aware that ADR is not the best option for everyone, but, along with taking these amendments into account, we think it is important to try and come to a conclusion between the parties for the sake of the family where possible. It will be interesting to see how any new developments to the FPR and to the practice of alternative dispute resolution may impact the family court in the future.
