By Melissa Doherty, Associate, Family and Relationships Team

Since the introduction of the Family Procedure (Amendment No 2) Rules 2023, couples in England and Wales have increasingly been encouraged to resolve their differences outside the courtroom thanks to a drive towards non-court dispute resolution (NCDR) options.

While these forms of resolution have long existed, the implication of the amendment to the rules has led to separating couples being encouraged to explore the many more options available to them which, in some cases give them far greater autonomy as to the outcome.

The full impact on couples will be observed in the fullness of time.

The rule changes, which took effect in April 2024, introduced a wider definition of “non-court dispute resolution.”

Non-court dispute resolution includes mediation, hybrid-mediation, arbitration, and collaborative law. These methods can have varying levels of solicitor involvement to meet specific client needs.

The family courts have discretion to encourage couples to pursue these routes and are able to adjourn cases where they feel non-court dispute resolution has not been fully explored.

Progress in the approach to divorce and separation

While official data is yet to be released on the uptake of non-court dispute resolution, from our own experience and that of our peers, couples are keen to explore these methods and avoid the well-known delays associated with the present Court system.

The impact? Faster, less stressful outcomes and the choice of an adjudicator of the couple’s choice. More importantly, these options encourage more cooperative post-separation and co-parenting relationships.

Mrs Justice Knowles’ landmark judgment in Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) highlighted the judiciary’s commitment to supporting non-court dispute solutions.

In her decision, she underscored the importance of trying to avoid litigation whenever possible, pointing to the new rules as a framework for courts to actively encourage families to explore these approaches.

Under this new approach, litigation should be the last resort in family disputes; the financial and emotional costs of protracted court cases often outweigh the benefits.

Positive outcomes for separating couples

The shift toward non-court dispute resolution methods has brought many benefits for families navigating divorce.

Using the various options open to them, separating couples are finding quicker and more targeted methods of resolution that better reflect their mutual interests.

These options offer more privacy and flexibility than traditional court processes, allowing the ability of each party to voice their concerns and preferences and arrive at tailored solutions. At the recent Resolution Future Practice conference which took place in Leeds from the 17th-18th October 2024, I was interested to hear that where appropriate clients have been given an opportunity to engage in the methods of resolution in non-traditional ways, it enabled them to leave the process feeling as though their (actual) voice had been heard irrespective of any decision that followed.

It is hoped these changes will help to clear the backlog in the family law courts and allow the Courts to focus on the cases that really require judicial intervention.

By pursuing non-court dispute resolution, couples can preserve their own resources minimise emotional tolls and help children to adjust with less disruption and less delay.

A family-centred path forward

The Family Procedure Rules amendments have marked a turning point for family dispute resolution in England and Wales, which has been widely welcomed by clients, courts and lawyers alike.

Many have already benefited from a greater emphasis on non-court dispute resolution, fostering healthier, more amicable separations that are future-focused.

The changes are encouraging couples to resolve their disputes more collaboratively or at the very least, more quickly instead of prolonged, stressful litigation.

Our experienced Family and Relationship Team have years of experience in all forms of non-court dispute resolution and supports couples with this new approach to family dispute resolution.

To find out more about our expertise in non-court dispute resolution, please call Melissa Doherty on 0207 240 0521 or email melissa.doherty@mackrell.com

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