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Non-Court Dispute Resolution

This page provides information on non-court dispute resolution matters relating to child disputes.

Changes to the Family Procedure Rules

In April 2024, a number of changes to Part 3 of the Family Procedure Rules came in to effect. These changes aim to encourage parties to engage in non-court dispute resolution (formerly known as alternative dispute resolution or ADR).

These changes include the following:

  • The definition of non-court dispute resolution has been widened. Previously the definition focused on mediation, but it now also includes arbitration, neutral evaluation, collaborative law and other means.
  • Changes to the Mediation, Information and Assessment Meeting (‘MIAM’). An authorised family mediator will still conduct a MIAM, but they are now expected to provide information about mediation as well as other options to resolve the dispute without needing to go to court.
  • The exemptions to the requirement to attend a MIAM before applying to the family court have been reduced. For further information, please see the information page on the government website on valid reasons not to attend a MIAM.
  • Inquiries where the applicant claims to have a valid reason for not attending a MIAM. Under Rule 3.10(1) of the Family Procedure Rules, if the applicant on their application claims that they have a valid reason for attending a MIAM, the court will inquire into whether this was not validly claimed or was validly claimed but is no longer applicable. This should be done at the gatekeeping stage and if the court finds that the applicant does not have a valid reason to not attend a MIAM, the court will direct the applicant, or direct the parties to attend a MIAM; and if necessary, adjourn the proceedings to enable a MIAM to take place unless the court considers that in all the circumstances of the case, the MIAM requirement should not apply to the application in question.
  • Consideration of appropriateness of non-court dispute resolution throughout proceedings. Under Rule 3.3(1) of the Family Procedure Rules, the court has a duty to consider at every stage in the proceedings, whether non-court dispute resolution is appropriate. Under Rule 3.4(2B) of the Family Procedure Rules, the court may give directions to parties regarding non court dispute resolution at any time in proceedings following the receipt of the safeguarding letter or safeguarding report. Further, the court can adjourn proceedings to allow the parties to undertake non-court dispute resolution.
  • Introduction of statements of position on non-court dispute resolution. Please see below for information on submitting a statement of position on non-court dispute resolution.

Options for non-court dispute resolution

Applying to the family court to resolve a child dispute should only be done if you have meaningfully attempted non-court dispute resolution and still cannot reach an agreement, or you have a good reason why non-court dispute resolution is not appropriate.

There are certain circumstances where non-court dispute resolution may not be appropriate, examples may include where:

  • One party does not feel safe or comfortable engaging in a form of non-court dispute resolution because there has been domestic abuse
  • There are child protection concerns
  • The matter is urgent because there is a risk that one parent will unlawfully remove the child from the UK
  • One party has refused to engage with non-court dispute resolution
  • At a MIAM, a mediator determined that non-court dispute resolution is not suitable for the parties circumstances.

Below are the different options for non-court dispute resolution.

Mediation

Mediation is a process that allows parties to negotiate child arrangements or resolve a dispute about their upbringing with the assistance of a professional family mediator. See our page on family mediation for more information.

Arbitration

Arbitration is where parties agree to appoint an arbitrator to resolve a dispute about their child(ren)’s arrangements or an aspect of the child(ren)’s upbringings.

Once the parties have chosen a family arbitrator through the Institute of Family Law Arbitrators’, the parties must complete sign and send a specific form where they will outline the details of their dispute they are seeking to resolve. By signing the form, both parties are agreeing to be bound by the decision of the family arbitrator.

Arrangements are made between the parties and the family arbitrator for the arbitration meetings to take place. At the end of the process the arbitrator will make a decision, this decision will be delivered to the parties in writing. The decision will include the reasons for the decision.

Generally, the parties will seek a consent order reflecting the family arbitrator’s decision.

See the Institute of Family Law Arbitrators’ website for more information on arbitration.

Neutral Evaluation

Neutral evaluation is a means of resolving a child dispute whereby the parties appoint an independent lawyer to advise the parties how their dispute should be resolved. The Lawyer will seek to understand the details of the dispute the parties are seeking to resolve and will give the parties an indication of what the family court may be decide, should the dispute escalate to the family court. This will be just an indication and will not be a legally binding decision.

Collaborative law

Collaborative law is a process in which parties appoint their own collaboratively trained family lawyer and the parties, and their respective lawyers meet to negotiate to make arrangements for the child(ren) or resolve a dispute about their upbringing.

Parties can only collaborate if they both have lawyers who are specially trained to work with other collaborative lawyers to assist their respective clients to reach an agreement.

To start the process both parties would meet with their respective lawyers separately to discuss their positions.

The collaborative lawyers will take their client’s instructions on their position and then the lawyers will communicate to arrange the first meeting. It is down to both parties to decide the date, time and location of any meetings.

Once an agreement has been reached on when and where the first meeting should take place, both parties need to attend that meeting with their collaborative lawyers. Issues will generally be discussed over several meetings until an agreement is reached.

If an agreement is reached, the lawyers will usually write up what has been agreed. This is not automatically legally binding; however, the parties can seek a consent order to formalise what has been agreed in a court order. See our page on consent orders for more information.

Statement of position on non-court dispute resolution

Parties to private family law proceedings must now submit a statement of position on non-court dispute resolution on an FM5 form 7 working days before their first court hearing.

This form asks parties about their involvement in, and views towards non-court dispute resolution. The form asks the parties whether they have attended and form of non-court dispute resolution in relation to the issues in dispute in the case. If they have, why the application to court was made despite having attended non-court dispute resolution and why non-court dispute resolution was not the right way of resolving the outstanding disputes in the case. If they have not, why the application to court was made, despite not having attended non-court dispute resolution and why non-court dispute resolution was not the right way of resolving the outstanding disputes in the case.

The purpose of the form is to seek information from the parties to help the court understand why non-court dispute resolution has not gone ahead or been successful to assist the court in determining whether it may be of benefit moving forward.

 

This information is correct at the time of writing, 2nd July 2024. The law in this area is subject to change.

Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. Individuals may print or photocopy information in CCLC publications for their personal use.

Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.

On this page

This information is correct at the time of writing, 2nd July 2024. The law in this area is subject to change.

Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. Individuals may print or photocopy information in CCLC publications for their personal use.

Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.

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