New ADR Rules come into force

As of the end of March, there has been a shift in family law which many have welcomed with open arms. Parties now must consider alternative dispute resolution (ADR) as a means to resolving their family dispute. They must consider it properly and not simply attend a Mediation and Information and Assessment Meeting (MIAM) as a means of obtaining a certificate with no other intention than to immediately issue their children or financial application.  ADR include processes such as mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law. A party must prove to the court that they have considered ADR by filing with the court and the other party a form setting out their views on using ADR as a means of resolving the matters raised in the proceedings.

The onus is not on parties at the outset of the case only. They must continue to consider the suitability of ADR throughout their case and the court can, of its own motion, adjourn proceedings for the parties to attend a form of ADR even if the parties do not agree (there are safeguards in place to prevent victims of domestic abuse from being compelled to attend unsuitable ADR processes and to ensure any child safety matters remain within the remit of the court).

Why is this happening? The court system is buckling under the pressure of funding cuts, post covid delays and a general influx of cases, particularly in the private law children section. Delays are commonplace and these delays result in children being left in limbo waiting months, or even years. for decisions which cannot continue. We also all know that, where appropriate, it is far better for parents or spouses to reach an agreement to settle their dispute than having an unknown tribunal impose a binding and final decision on them.

What does this mean in practice? Lawyers must continue to review the suitability of ADR throughout our client’s cases and encourage our clients and opponents to attend. There are likely to be more applications for costs against parties in circumstances where one is wiling to attend ADR but the other party is not and this results in cases continuing to stagnate with little progress or resolution. As practitioners, we already encourage our clients to consider ADR. Sometimes the stumbling block is the other party, sometimes it is our own client. There are certainly occasions when ADR is not appropriate but there are plenty of occasions when it is an entirely appropriate pathway to a resolution but one party refuses to consider it. This new practice direction enables us lawyers to give our clients and our opponents a more forceful nudge towards ADR in cases where there are no sensible reasons to refuse it or where one party is utilising the court’s delay to their advantage (which I do see more often than I should in children cases).

Thankfully, as outlined above there are numerous options available for ADR so parties can work together with their lawyers to find the best solution for their family.