Readers of a certain vintage will recall the exchange between Sir Humphrey Appleby and Sir Bernard Woolley, where they are trying to stop yet another Jim Hacker announcement which will lead to a change of policy direction. The denouement of all that is wrong with this is described by Sir Humphrey as ‘change’. Sir Bernard replies ‘Oh, change’ as if change is self-evidently wrong. Sir Humphrey, ‘Yes Bernard, change.’

For all its innovation in certain respects, my observation after in excess of 25 years of practice at the Bar is that family law can be fundamentally quite conservative. We have always done it like that. ‘Change’ might upset the apple cart.

Back in the day, Thorpe LJ stated in Al-Khatib v Masry [2004] EWCA Civ 1353, [2005] 1 FLR 381 at [17]:

‘From the point of view of the Court of Appeal it supports our conviction that there is no case, however conflicted, which is not potentially open to a successful mediation, even if mediation has not been attempted or has failed during the trial process. It also demonstrates how vital it is for there to be judicial supervision of the process of mediation.’

Churchill

On 29 November 2023, the Court of Appeal decided Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416. It held that a whole generation of lawyers and judges had misunderstood Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, which had previously been understood to be binding authority for the proposition that the court cannot compel parties to engage in mediation. Holding that the comments about mediation were merely obiter, the Court of Appeal determined that it is permissible in some circumstances for the court to demand that the parties attempt to resolve their dispute prior to seeking a judicial determination. Such a power must be exercised in a way which does not impinge on Article 6 rights and must be proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. No definitive factors were laid down as to when it may be appropriate to order a stay but some possibly relevant factors at [61] to [63] are suggested.

Vos MR concludes by stating:

‘even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method … is a matter for the court’s discretion, to which many factors will be relevant.’

A crystal ball was not required to have predicted the outcome of Churchill. The tectonic plates in this regard have been groaning for some time. This decision represents potentially seismic change. It will be interesting to see how this plays out and in particular how this decision in a purely civil dispute may cross-germinate on to what is sometimes described as the island that is family law.

Forthcoming changes to the FPR concerning NCDR

Vectoring in on this change are The Family Procedure (Amendments No. 2) Rules 2023/1324,1 laid before Parliament on the 7 December 2023. These amendments to the Family Procedure Rules 2010 will largely come into force on 29 April 2024.

They are the result of the work and consultation undertaken by the Family Procedure Rule Committee (‘FPRC’) concerning the early resolution of private family law arrangements.2 The FPRC was essentially charged with consideration of how the rules might encourage early resolution of private family law disputes short of mandating NCDR. The government conducted a separate consultation concerning the issues associated with mandating NCDR and the results of that are still awaited.3

The combination of Churchill and these statutory amendments presage for the potential tectonic change.

Resolution’s call for change to MIAMs.

In the same week that Churchill was decided Resolution launched its ‘Vision for Family Justice’.4 One call is for the replacement of statutory Mediation Information and Assessment Meetings (‘MIAMS’) with an ‘Advice and Information Meeting’ (‘AIM’). The AIM would be delivered by a wider range of family justice professionals than purely accredited family mediators. Whether fairly or not it has been perceived for some time that a MIAM necessarily conducted only by an accredited mediator may have an inbuilt bias towards family mediation, rather than the full smorgasbord of Non-Court Dispute Resolution (‘NCDR’) options which have developed over the years. MIAM providers suggest that all forms of dispute resolution can be discussed at a MIAM. There remains an anxiety, however, that this may not always be the case.

Resolution also calls for more rounded advice on the NCDR options, beyond just family mediation. The potential issues with family mediation (and indeed all forms of dispute resolution) are helpfully explored in the recent Fair Shares study, a large-scale empirical research project conducted by Professor Emma Hitchings et al.5 The President of the Family Division also recently set out his stall concerning the need to consider a wider range of dispute resolution options than purely family mediation.6

A new definition of NCDR

With this groundswell for change, from 29 April 2024 the definition of ‘non-court dispute resolution’ at FPR 2.3(1)(b) will be widened to mean:

‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.’

A change to the conduct of MIAMs

Part 3.9(2)(e) will be amended to impose a statutory requirement at a MIAM that the MIAM provider will, ‘indicate to those attending the MIAM which form, or forms, of non-court dispute resolution may be most suitable as a means of resolving the dispute and why’ and at (f) [if 3.9(2)(e) applies], ‘provide information to those attending the MIAM about how to proceed with the form, or forms, of non-court dispute resolution in question’.

Resolution have not quite got their AIM, but surely their glass is half full. Henceforth NCDR does not mean just mediation and there will be a requirement on MIAM providers to properly triage into an appropriate form of dispute resolution.

Changing the name might be regarded as cosmetic and in any event was beyond the scope of the FPRC as the term MIAM is to be found in primary legislation.

This is surely the moment for the MIAM providing community and those who train and accredit them to grasp this nettle (some may call it a lifeline). If the current MIAM community cannot step up to this task, then I suspect that the Resolution call to widen the scope of MIAM providers will become unanswerable.

A requirement to state your views about NCDR

A new FPR 3.3(1A) provides that ‘when the court requires, a party must file with the court and serve on all other parties, in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings’. The court will increasingly require this to be done as digital capacity is rolled out. The origin for this development can be traced back to Mostyn J in Mann v Mann [2014] 2 FLR 928 and his deployment of an Ungley order. It will be recalled that an Ungley order is ‘without prejudice save as to costs’ and may be instrumental in a determination of costs at the end of proceedings. The 3.3(1A) requirement will be open so that a judge will be able to understand reasons for any potential aversion to NCDR and case manage during the life of the case accordingly.

Karen Barham gets a special mention in dispatches for developing the idea of ‘Part 3 correspondence’ which will focus minds on the question of non-court dispute resolution in a way previously not required.7

The form must be filed and served. This will require parties to get in touch with each other and talk about NCDR.

Carrots and sticks

Mann v Mann also called for the removal of the words ‘where the parties agree’ when the court was considering whether to adjourn for NCDR. That requirement has now been removed. The parties do not need to agree.

However, these amendments were never about mandating and so the court ‘should encourage parties, as it considers appropriate’ to find out about and then undertake NCDR. This is the carrot.

In the context of financial remedies, the stick comes in the form of an amendment to FPR 28.3(7) which provides, as a reason for departing from the no order as to costs presumption, a failure by a party, without good reason to attend at a MIAM or at NCDR. It will be interesting to see what case law develops in this area and whether it acquires the potency of the previous amendment to PD 28A 4.4 concerning the requirement to negotiate on an open basis.

The MIAM exceptions have been tightened up, most notably the FPR 3.8(1)(c)(ii)(ad) ‘unreasonable hardship’ being substituted for the tighter ‘significant financial hardship’. Parties and Practitioners can expect a more beady review of MIAM compliance once the matter is before the court.

References to domestic violence have been widened to domestic abuse in keeping with the Domestic Abuse Act 2021. It remains the case that domestic abuse provides an exemption from MIAM requirements.

It remains to be seen whether change is indeed upon us, or whether these provisions will slide into misuse and obscurity. It is hoped that these rule changes will encourage judges, practitioners and parties to keep at the forefront of their minds the need to consider whether it would be reasonable and then how to seek to resolve their dispute away from the court.