One of the unexpected announcements contained in Chancellor Jeremy Hunt’s pre-election spring budget last week was an increase in resources allocated to support non-court dispute resolution. This promotes the resolution of disputes out of court using all forms of Alternative Dispute Resolution (ADR).
It is difficult to disagree with the chancellor’s statement: ‘Too many legal cases, particularly in family law, should never go to court, and it would cost us less if they didn’t. So, we will spend £170m to fund non-court resolution, reduce reoffending and digitise the court process.’
Distribution of the budget for non-court resolution
As ever, the devil is in the detail, and the Treasury’s budget ‘red book’ published following the announcement reveals that the budget for non-court dispute resolution breaks down into £55m for the family courts’ to offer online targeted guidance and earlier legal advice, shortening wait times and supporting families through non-court dispute resolution’.
Of the rest, £100m is for rehabilitative activities in prisons and £15m ‘to introduce digital solutions, reducing administrative burdens in the courts’. In the opinion of the Law Society, this did not go far enough when measured against the overall needs of the justice system. Nevertheless, extra funding is to be welcomed. It is important for anyone faced with a family law dispute to be aware of the various types of ADR available and the court rules which require anyone contemplating court proceedings to consider ADR.
What are the court family procedure rules?
A recently released Practice Direction Update lists a number of amendments to the Family Procedure Rules, which must be followed in all cases. This update is “intended to increase MIAM [(Mediation Information and Assessment Meetings)] attendance and the earlier resolution of private law proceedings relating to children and financial remedy proceedings.”
So, what then is a MIAM?
Attendance at an MIAM provides an opportunity for the parties to a dispute to receive information about the different processes of non-court dispute resolution and to understand the benefits they can offer as ways to resolve disputes. At that meeting, a trained mediator will discuss with the parties the nature of their dispute and will explore whether a form of non-court dispute resolution would be a suitable way to resolve the issues on which there is disagreement.
What are the different types of Alternative Dispute Resolution available?
There are various types of non-court dispute resolution which can enable parties to settle disagreements, for example, mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law. A mediator who conducts an MIAM is a qualified independent facilitator who will also discuss all potentially suitable forms of non-court dispute resolution.”.
What are the implications of not attending MIAM?
For non-court resolution to be successful moving forward, there will be much greater scrutiny on parties who seek to claim an exemption to the requirement to attend an MIAM. The courts will now actively consider the reasons given by anyone claiming an exemption as follows:
• To ensure the validity of any MIAM exemption claims, inquiries will be made by the court into any such claims.
• If a MIAM exemption claim is found to be invalid or no longer applicable, the court may suggest the applicant or the parties attend a MIAM and is entitled to adjourn proceedings to that end.
• If any party attended non-court dispute resolution within four months prior to the date of the current court application for the same or a similar dispute, a MIAM exemption applies. In this case, evidence is required in the form of “written confirmation from the non-court dispute resolution provider that the prospective applicant has attended”.
• Where a MIAM exemption claim requires evidence, this must be provided with the application form.
In all cases, exemptions based on domestic abuse will be upheld. In all other cases, when the parties come to court, the court will likely ask the parties for their views on non-court dispute resolution. Although it cannot require parties to attend ADR, the court has general powers to adjourn proceedings and make it clear to the parties that they should use this time to attend non-court dispute resolution. If any party fails to attend non-court dispute resolution, this will not affect any substantive decision, but it may be taken into account when the court is making a decision as to whether an order for costs should be made.
How is the drive towards non-court dispute resolution relevant in practice?
Recent figures have suggested that the number of divorces in England and Wales has fallen to its lowest rate since 1971. According to the latest ONS figures, a total of 80,057 divorces occurred in 2022: 78,759 opposite-sex divorces and a further 1,298 same-sex divorces. That’s a significant fall from the 2021 figures of 111,934 and 1,571, respectively, and considerably down from 1993 when divorce rates peaked with 165,018 divorces granted.
Despite this, there has been no corresponding fall in the number of private law applications issued in respect of children disputes or financial remedy applications. It is significant that, particularly in cases involving children, there is a significant difference between the number of applications issued and the substantially lower number of cases in which the court goes on to make an order. It follows that in the majority of those cases, an agreement was reached. This must mean that the parties could have resolved their issues using ADR instead of dealing with the matter through expensive and stressful court proceedings. Not only would this have saved significant money in legal fees, but also ADR has the advantage of being less stressful and time-consuming than court proceedings. Family cases are unique in that the parties to a dispute will often have an ongoing relationship whether they want to or not, as they share responsibility for their children. ADR can help parties navigate their future relationship in a more constructive and amicable way.
How can we help at Watson Morris Family Law?
At Watson Morris, we are keen advocates for ADR, and the increased funding for non-court dispute resolution announced by the chancellor will be welcomed.
Although ADR will not be suitable in some cases, such as cases involving domestic abuse or where the court needs to make orders on an emergency basis, in the vast majority of cases, there may be a role for ADR.
We are experts in supporting our clients through ADR and providing information about all types of ADR which should be considered. For further information or advice, please contact us.
Written by Peter Morris
March 12, 2024
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