In March 2023 two significant consultations were published on the subject of using Alternative Dispute Resolution (ADR) to resolve private family law arrangements. The more substantial consultation published by the Ministry of Justice is entitled Supporting earlier resolution of private family law arrangements and contains key proposals to make ADR compulsory in these cases.

The shorter consultation presented by the Family Procedure Rule Committee is entitled Consultation on strengthening existing rules and practice directions to encourage earlier resolution of private family law children and financial remedy arrangements and puts forward proposed amendments to the Family Procedure Rules and it Practice Directions to effect the move to compulsory mediation.

The theme common to both consultation papers is to expand the use of ADR, principally mediation, to keep cases out of courts, and to facilitate this expanded use, to make mediation largely compulsory and to impose costs penalties where parties unreasonably refuse to engage in ADR. But is it lawful to make participation in ADR compulsory? And is there any point, where a resentful and reluctant party chooses to sit on their hands during an ADR process, and does no more than notionally engage in the process?

Is compulsory ADR lawful?

In the case of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 the Court of Appeal observed as follows (at [9]):

‘It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. The court in Strasbourg has said in relation to article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to “particularly careful review” to ensure that the claimant is not subject to “constraint”: see Deweer v Belgium (1980) 2 EHRR 439, para 49. If that is the approach of the European Court of Human Rights to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6.’

The law always moves on. In June 2021 the Civil Justice Council published a report simply entitled Compulsory ADR. That put forward the hypothesis:

‘56. The firm views briefly expressed in Halsey about Article 6 have proved to be the beginning of a debate rather than the conclusion. It would be helpful if the issue were to be addressed afresh by an appellate court and/or the legislature as soon as possible so that procedural reform can proceed with some certainty. What follow here are the views of the authors.

57. It is, we think, now accepted that the Strasbourg authority cited in Halsey does not mean that compelling parties to engage in ADR will necessarily violate Article 6. Moreover, there is a tension between treating an order to mediate as a breach of Article 6 but then giving the court power when dealing with costs to penalise a party financially for unreasonably failing to mediate. That was an approach which Lord Dyson held to be permissible in Halsey,³¹ and has been followed in other cases,³² although in our experience, the use by courts and tribunals of their powers to impose costs sanctions for unreasonable conduct has been mixed….The authors of this report suggest that any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights. If there is no obligation on the parties to settle and they remain free to choose between settlement and continuing the litigation then there is not, in the words of Moylan LJ in Lomax, “an unacceptable constraint” on the right of access to the court. We think that the logic of the Lomax decision is capable of applying to other forms of ADR as well as ENE.’

In short, the authors of the Civil Justice Council report took the view that it was lawful, in the widest sense of that term, to compel parties to participate in an ADR process:

‘59. The logical corollary of the above analysis is that an order for participation in an ADR process that was disproportionately expensive or took an excessively long time or was otherwise burdensome would obstruct access to the court and breach Article 6. We note that in Rosalba Alassini the Court of Justice attached importance to the fact not only that the parties retained a free choice as to whether to settle or not but also that the ADR process was free and caused no delay to the ultimate resolution. The Court did not suggest those were pre-conditions for compliance with Article 6, and we would not go that far: what matters is that any cost and delay is proportionate.

60. Subject to that important proviso, we think the balance of the argument favours the view that it is compatible with Article 6 for a court or a set of procedural rules to require ADR.’

Supporting earlier resolution of private family law arrangements

If a week is a long time in politics, then three months is a political lifetime. In the Foreword to the document, the former Lord Chancellor Dominic Raab notes:

‘Every year around 55,000 families end up in the family courts to work through their differences and resolve these disputes, often with protracted proceedings that put prolonged stress on all involved.

At a time when our courts are facing unprecedented pressures following the COVID-19 pandemic, cases can be even more drawn-out than usual – leaving children and families in limbo for longer.

The Government believes that more disputes could be resolved without going to a courtroom, sparing families from this unnecessary stress and children from avoidable anxiety.

The clear exception to this would be with cases involving domestic abuse or child protection concerns – these cases must go to court. And by reducing the overall number of disputes from reaching court, we can create space and free up time so that these cases can be heard more quickly.

Providing families with an affordable, appropriate and effective alternative to court will help achieve this.

Mediation can play a role where there is the will to find common ground – not just between separating parents or couples but other family members as well. This is clearly demonstrated by the success of the Government’s Mediation Voucher Scheme.

With an impressive 69 percent success rate, the scheme has made it possible for over 13,500 families to enlist the help of mediators and reach full or partial agreements, without the need to go through a potentially long and adversarial court process.’

Perusing the consultation paper, one is struck by the absence of any consideration of the effects of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which took a scythe to legal aid entitlements in family cases, and the concomitant rise in unrepresented litigants in person. Sometimes the only professional view that these parties will hear, is that of a judge: which means that cases tend to run, until a judge resolves them.

But there is no hint in the paper that the removal of funding, and hence representation, has some part to play in the current strain on the family courts. Instead, ADR will be used to try to keep such cases out of court and thus reduce pressures on the family courts. The government accordingly proposes to expand ADR in the following way, by removing or reducing the current list of exemptions to Mediation Information and Assessment Meetings (MIAMS) which are intended to steer cases out of the court system and towards ADR:

‘We are working with the Family Procedure Rule Committee to tighten up exemptions. We believe that the current list of MIAM exemptions needs shortening and that exemptions should be more rigorously tested by the courts; for example, an exemption exists if there is no authorised mediator within 15 miles of the applicant’s home despite many mediators now offering online MIAMs. The Family Procedure Rule Committee will also consider the timing and enforcement of the evidence requirement for exemptions from the MIAM requirement (see Chapter 4). The Committee is also contemplating rule changes to encourage parents to consider dispute resolution, including the use of costs orders. The Committee will consult on these changes in early 2023.’

Of course, the essence of ADR is that it is intended to facilitate a consensual settlement of a dispute: but one or both parties may be reluctant to mediate. They may want their day in court, however expensive that might prove to be. In order to encourage sensible litigation behaviour, the prospect of a costs order for unreasonable conduct is to loom as the potential downside for refusing to engage in ADR.

The new system will embody not just a mechanism for signposting parties to ADR, but also to provide that mediation will be compulsory before recourse can be made to court, though narrow exemptions, in for example domestic abuse cases will continue to apply:

‘The potential changes to the Family Procedure Rules above are intended to make sure that the current MIAM requirement is applied and enforced as effectively as possible, including once an application has been made to the court. We hope that amendments to the Family Procedure Rules on MIAMs can be made as quickly as possible. However, the Government’s ambition is to go further, and we want to introduce a new system whereby we make mediation compulsory before a court application is made.

We want all people who are seeking to resolve disputes and make arrangements for their children or finances, including on separation or divorce/dissolution, to make a reasonable attempt to mediate before an application is submitted for a court order, unless they are eligible for an exemption.’

The paper goes on to set out how such a system might work.

‘Under a new system of compulsory mediation pre-application, the people involved would attend an information meeting, similar to the current MIAM, before attending mediation. This meeting would provide them with information about the court process and the benefits of mediation and other forms of dispute resolution. This meeting would also provide the mediator with an opportunity to assess the suitability of the parties for mediation and completion of a parenting programme, and whether certain exemptions apply (for example exemptions that cannot be self-certified by the applicant).’

Family cases are of course, notoriously fraught, and in order to encourage people to mediate, the government proposes to use the court’s power to make costs orders, to act as a Sword of Damocles, hanging over unreasonable litigants.

‘We are keen to see courts using costs orders in appropriate cases to hold people accountable if they do not make a reasonable attempt at mediation or if they unreasonably pursue an issue. We are proposing to increase the use of costs orders in appropriate cases, both in the short term and after the introduction of the requirement to mediate outlined in Chapter 3. The Lord Chancellor has asked the Family Procedure Rule Committee to review the Family Procedure Rules on use of costs orders. The Committee has decided to launch their own consultation on these issues which will be published in early 2023.’

There will be changes to the rules to ensure that parties make a reasonable attempt to mediate or face the financial consequences. There is however a problem here: even if the parties attend a mediation, if they are not in the mood to settle their dispute or to cooperate or to make substantial concessions, the mediation may fail. The government proposes that costs sanctions could still be made in certain circumstances:

‘We want costs orders to be available to, and used by, the court in several situations. Firstly, courts should consider making costs orders against the person responding to the application (the respondent) where they have not made a reasonable attempt at mediation before court without a valid exemption. In such cases, the other party will have been able to make their application to court (as set out in Chapter 3), but the respondent will risk costs orders against them at the end of the proceedings if they have not made a reasonable attempt to mediate and particularly if they do not make a reasonable attempt to mediate after the proceedings have started. Courts should also consider ordering costs against applicants who did not attempt mediation before court on the basis of an exemption which the court finds later was not validly claimed. If a case has been ordered to mediation by the court – either because an exemption was invalidly claimed or because the case has become suitable (see next section), then costs orders should also be available where one party has not made a reasonable attempt at mediation at that stage. Finally, costs orders should also be considered where the court decides that one party dragged out court proceedings by refusing to accept a reasonable offer from the other party to the case.’

Consultation on strengthening existing rules and practice directions to encourage earlier resolution of private family law children and financial remedy arrangements

With these thoughts in minds, one turns to the shorter paper to see the devil in the detail of the new process. There is nothing really revolutionary in the proposals: it simply means re-emphasising the role of conduct, and flagging up that failing to engage in ADR might be prima facie unreasonable:

‘35. Section 51 of the Senior Courts Act 1981 states that, subject to the provision of (amongst others) rules of court, the question of making costs orders is in the discretion of the court.

36. Part 28 of the Rules makes provision in relation to costs orders in family proceedings, whereby a court may order one party to a case to pay some or all of the costs of another party.

37. In relation to private family law children cases, the starting point in the Rules is that the court may make such order for costs as it thinks just (rule 28.1 of the Rules). The Rules, by applying rule 44.2(4) of the Civil Procedure Rules 1998, provide that, in deciding what order, if any, to make the court will have regard to “all of the circumstances” including “the conduct of all of the parties”.

38. However, the Committee is conscious that various decisions of the courts in private family law children proceedings mean that the reality is that orders for costs are rarely made in these cases.

39. In relation to financial remedy cases, the Rules contain a general rule that the court will not make an order for costs (rule 28.3(5)). However, it may do so where it considers that to be appropriate because of the conduct of a party in relation to the proceedings (rule 28.3(6)). Rule 28.3(7) of the Rules sets out factors the court must have regard to in deciding what costs order (if any) to make.’

In fact, there is no need to amend the rules in any significant or revolutionary way in children’s proceedings:

‘40. The Committee considered whether to propose to amend the cost order provision in the Rules in respect of private law children proceedings. The Committee agreed that there were already sufficient Rules in place to permit judicial discretion to consider cost orders in private law children proceedings. For this reason, the Committee does not propose any amendments to the Rules as regards costs in these proceedings.’

In relation to financial cases, amendments are proposed, which will engage conduct, including a failure to attend or engage in ADR:

‘41. The Committee considered at length whether changes to cost orders provisions in financial remedy cases could act as a deterrent for not attending a MIAM where this is ordered by the court post-application, or where parties do not attempt to engage with NCDR (without good reason) where the court determines that a case is suitable for NCDR.

42. The Committee proposes amendments to include express provision in the Rules for the court to factor in as a matter of “conduct” any failure to undertake a MIAM if parties are ordered to attend a MIAM post-application, when considering costs orders against a given party. The Committee notes that any such change would retain judicial discretion, so that costs orders would only be made when the court considers it appropriate in all of the circumstances of the case, rather than being required in every case of noncompliance with an order to attend a MIAM.

43. The Committee also proposes amendments so that where the court determines that a case is suitable for NCDR and encourages the parties to attempt it but it is clear that one party has not attempted to engage with NCDR (without good reason), then the court should factor this in as a 15 matter of “conduct” when considering costs orders against that party. Again, judicial discretion would be retained under this proposal.

44. However, the Committee has considered that there may be practical concerns with these proposals, including how the court would determine whether a party has attended NCDR, and how it would determine the reason for not attending, and concerns around costs orders in such cases giving rise to satellite litigation.’

Conclusions

When one considers reforms of this nature, it can be a moot point as to whether they represent innovation and an expansion of good practice, or whether in fact they are conceived as a sticking plaster to place on the overburdened family court system, to relieve pressure and to avoid expending large sums of money to ‘fix the courts’. It may be that there are elements of both considerations in the proposed reforms. What is clear is that they are consistent with a broader direction of travel in the civil justice system and are likely to lead in turn, to more costs orders in the family courts.