Minimising the negative impact of family law disputes

For family lawyers, encouraging our clients to resolve their disputes in a way that helps them avoid prolonged conflict, through the use of Non-Court Dispute Resolution (NCDR), should be a key consideration. Undoubtedly, our client’s relationship disputes are one of the most challenging points in their lives.  As such, they need lawyers to help calm the situation rather than inflame matters even more.

Why is NCDR important?

At Clarke Willmott, all members of the family team are Resolution lawyers which means that we commit to a particular code of conduct to approach our work in a constructive and conciliatory way.  In doing so, we actively promote a variety of NCDR options.  Not only do we believe that NCDR is an entirely effective way for families to address their issues, but also given the demand on the family courts, it is now essential to look at alternatives.  Every year, the court system faces increased pressure in dealing with the overwhelming volume of cases.  Our clients are the ones who bear the brunt of this, as inevitably it results in increased time to resolve their disputes, increased cost to them and increased stress in their lives, at a point when they are already experiencing trauma.

Changes to the Family Procedure Rule

In a positive move by the government to address the issues, they have introduced changes to the Family Procedure Rules. In particular, they have strengthened the obligations under part 3 of those rules. Clearly, it is recognised that there is a breaking (broken) system, and we need to be constantly looking at ways to help fix it.

Three of the main changes are:

A widening of the definition of NCDR

There are a whole host of ways in which we can help our clients outside of the court system but until recently, the rules only refer to mediation  – moving forward, collaborative law, arbitration and evaluation by a neutral third party will be included.

Changes to the MIAM process

A MIAM is a mediation information and assessment meeting.  It is a requirement of all applicants to attend one of these prior to submitting a court application (there are limited exemptions meaning an applicant doesn’t have to attend a MIAM but, moving forward these exemptions are being reduced from the previously long list of exemptions that could apply). MIAM providers will offer parties further information on other NCDR options that may be more suitable.

Introduction of the NCDR FM5 form

Parties to proceedings must produce this particular form, which will be signed off with a statement of truth, outlining their views on using NCDR to resolve matters.

These are all welcome changes. There does need to be a more robust approach. Family lawyers, in particular, should be very wary of proceeding to court without properly exploring NCDR and acting on it.  For years now we have witnessed almost an abuse of the MIAM process where it is just seen as a tick box exercise to accelerate an application to court.

In practice, a failure to engage in NCDR without good reason could result in proceedings being adjourned to encourage parties to engage. That will result in more delay and inevitably more cost. In financial family law proceedings, non-engagement may even result in cost orders being made against the party who refuses to engage.  So again, financial penalties resulting in more layers of cost for the client.

Therefore, efforts are most definitely ramping up and they are all appreciated.  However, as professionals working with families, we really need to do our bit to make sure we are helping towards fixing the issue for the benefit of our clients.  That means family lawyers, but it also includes any other professional working with these individuals.  It is so important that you refer your clients to lawyers who are active in NCDR.

Speak to a specialist today

At Clarke Willmott, our Resolution family lawyers are at the forefront of NCDR.  With our approach, we believe that we can truly help our clients navigate their family law disputes in a way that will cause minimal long-term damage to family relationships.

To speak to a member of our family law team, please request a consultation.