Non-Court Dispute Resolution
Non-court dispute resolution (NCDR) procedures are becoming more popular as they offer an alternative to the traditional court system as a way of resolving disputes.
The recent case of X v Y [2024] EWHC 538 (Fam) has further highlighted the importance of using NCDR within family law proceedings. The case addressed the legal issue of whether the court has the power to compel parties to engage in NCDR.
Changes to the Family Procedure Rules (FPR) 2010 are expected to come into effect on 29 April 2024 which will empower the court to consider whether NCDR is suitable and promote the court’s ability to encourage parties to try NCDR. The changes will not enable the court to compel the parties to engage in NCDR but the court can timetable the proceedings in an attempt to encourage the parties to explore NCDR. This power of encouragement will be reinforced by further amendments to the Rules which could result in a costs order being imposed against a party who fails to engage in NCDR without good reason.
The court acknowledged that family disputes are often best resolved through discussion and agreement outside of the courtroom, emphasising the fact that Rule 3.3(1) of the FPR mandates the court with a duty to consider if NCDR is appropriate “at every stage in proceedings”. The court must take into account whether the parties have attempted mediation or any other form of alternative dispute resolution (ADR) and may direct, either on application of the parties or of its own initiative, that proceedings, or hearings in proceedings, be adjourned to a specified period to enable the parties to consider NCDR.
The relevance of the decision in Churchill v Merthyr Tydfil to family proceedings was discussed. In Churchill, the Court of Appeal held that the court could compel parties in civil proceedings to engage in NCDR or stay proceedings for such resolution.
In X v Y, the court urged the parties to engage meaningfully in NCDR to resolve their financial dispute before the scheduled financial remedy hearing which is due to take place in June 2024 and pointing out to the parties that the costs of NCDR were undoubtedly cheaper than those of litigating to a contested hearing. In this particular case, neither party had ever attempted any form of NCDR and so could give no valid reason why the process was not suitable for them.
The judgment in this case serves as a pivotal moment for NCDR in family law, aligning with the broader trend in civil proceedings towards ADR. It underscores the court’s role in encouraging parties to resolve their disputes amicably and efficiently, potentially shaping the future of dispute resolution in family law.
If you are interested in finding out more about NCDR, make an appointment to speak to us today. Collaborative Law is one form of NCDR and all three of the family lawyers in our team are collaboratively trained.
For more advice on Family Law contract Lin Cumberlin on 01722 410664 or email This email address is being protected from spambots. You need JavaScript enabled to view it.
By Lin Cumberlin