A New Beginning for Dispute Resolution?

The Family Procedure Rules set out a time frame for dealing with an application for financial provision which includes getting to a First Directions Appointment within 14 weeks, then further steps to a Financial Dispute Resolution hearing, and then (if necessary) to a Final Hearing, which, in theory, means applications could be dealt with in 6 months. However, delays caused by Covid-19, by litigants in person, and by spending cuts in the ministry of justice mean that the system is totally overstretched and phenomenal delays in the family judicial system are widely reported.

In April 2024, the Family Procedure Rules regarding dispute resolution were updated. Many family lawyers hope that this will be the catalyst for changing the way that financial arrangements and child disputes on separation are dealt with. Since 2014, there has been a requirement to consider mediation, normally with a mediator (unless exempt) prior to commencing proceedings. The aim was to encourage people to mediate rather than have contested proceedings, but the system appears to have been slightly toothless and rather than encouraging out of court settlements, in some cases has become simply a hurdle to be got over before the main event of court proceedings.

Before the update, it was reported that too much emphasis on mediation and a lack of compliance by family solicitors facilitated by the wide range of exemptions were two of the reasons for the lack of uptake of Mediation Information Assessment Meetings. The new rules aim to encourage the uptake of other forms of Non-Court Dispute Resolution (NCDR), thus reducing the amount of people issuing financial proceedings, therefore, ultimately reducing court delays.

Charlotte Steele, Family Lawyer at Sinclair Law looks at what these changes are and what they will they mean for clients?

Mediation Initial Assessment Meetings (MIAM’s)

The name MIAM makes it seem as though these meetings are solely focused on mediation, an issue identified by Resolution in their manifesto. Not only does the name of the meeting suggest that mediation is the only option, but mediation is the only NCDR process that legal aid is available for, and prior to the introduction of the new Family Procedure Rules, the actual MIAM certificate only required the mediator to confirm suitability for mediation, making no reference to any other form of NCDR. Despite being an organisation that avidly promotes the use of NCDR, Resolution chair, Grant Cameron responded to the Governments proposals for mandatory mediation in their consultation paper, explaining that mediation is not a ‘panacea’ and therefore is not right for everyone. As previously, under the new rules, before issuing proceedings, people will be required to see a mediator but rather than just considering mediation, mediators are obligated to also discuss all the alternatives to litigation which include Collaborative Law, Arbitration and Private FDRs. As well as this, the changes crucially include a tightening of the exemptions to attend a MIAM.

 Enforcement of these rule remains a matter for the judiciary, however, as seen in the recent case of  X v Y [2024] EWCH 538 (Fam),  District Judges are being directed to impose cost penalties on anyone issuing court proceedings unnecessarily (an issue that lawyers will be very aware of) and to adjourn proceedings in order to encourage people back to a settlement process, demonstrating strong judicial support for the amendments.

Whether these new rules successfully reduce court traffic and in turn, signify a new dawn in how financial issues and child disputes will be dealt with remains to be seen. Arbitration and Collaboration are both extremely effective at bringing about quick and cost-effective outcomes, so, if the new rules put these two under used remedies squarely on the legal agenda, that can only be a positive step.

Sinclair Law have multiple collaboratively trained lawyers and the whole team is trained in the arbitration process. Contact us today for a free 30-minute legal consultation. Complete the contact form or call us on 01625 526 222.

Article Source Here: A New Beginning for Dispute Resolution?