Amendments to the two main FRC constitutional documents

Paragraph 9

In our view, it is very important to make reference to appropriateness and safety issues, because of the issue of abuse including financial coercion and control.

A reference to Collaborative law is also missing.

We would not include a specific reference to The Divorce Surgery, which is a single private, commercial dispute resolution option, rather than a generic one like mediation, Collaborative law or arbitration. It doesn’t seem right to us for this type of court protocol document to encourage referral to just one example of a private provider (or to seek to list every provider). There is no reason why others couldn’t establish similar initiatives, and some others already have. It would be better to refer to the general type of service.

With the above in mind we suggest opening this paragraph with “FRC Judges will be ever-mindful of opportunities for the parties, where safe and appropriate, to engage in attempts to reach settlement of some or all the issues out of court by whatever means are suited to the case (e.g. mediation, including the opportunity to attend a MIAM, working collaboratively, jointly advised settlement services, early neutral evaluation, Private FDRs and/or use of family law arbitration) and will encourage parties to explore the available possibilities.”

It may be helpful to include a link to the Mediation Guide for judges, magistrates and legal advisors and anything similar or produced on other issues resolution processes.

We would press on the judiciary that many of our members have concerns that there are many instances where the reasons not to attend, say, mediation are rooted in anxiety and fear, and the client does not necessarily want that stated in open correspondence for fear of inflaming the situation or advertising her/his concerns in a way that could be used on the ground by the other party. Additionally, making that kind of allegation in open (or indeed any) correspondence can in some circumstances be seen as provocative and reduce the chances of a successful negotiation between solicitors and settlement.

We are aware of suggestions that paragraph 9 go further. We would urge caution as there is not currently consensus on the best approach, and there are concerns about the need to be sensitive to safety and coercion, and not inflaming matters further. We would be happy to discuss this further with the authors of the FRC Good Practice Protocol and how to improve the application of the existing rules and protocols among the judiciary and the legal profession.

We think it would be useful to produce some standard court order clauses to support the use of any out of court process complementary to the court process. The current standard orders (relating to finance) don’t refer to non-court options beyond the MIAMs requirement; we suggest that draft orders should be developed to help remedy this.

Finally, for various reasons a Form A may not always be issued prior to a private FDR, with voluntary exchange of Forms E and questionnaire information agreed between solicitors along with a referral to a private FDR. The Protocol may wish to recognise that the referral to a private FDR doesn’t necessarily come from the court – if a private FDR did not lead to a resolution and so the matter enters the court process, it would be useful for the Protocol to acknowledge that there may be reasons why it may be appropriate for a court based FDR to be bypassed and for a date to be set for a final hearing.

Paragraph 15

We agree that, wherever possible, advocates should work together to produce a single asset schedule and chronology. However, the court should have in mind that in some cases the costs of seeking to agree a single schedule can be high, without providing any agreement or much advantage to justify the time and costs incurred.

Fourth Schedule Paragraph 7(ii)

Consideration might be given to adding:
‘d. where there is no intention to file a questionnaire, a statement indicating such.’

For further information please contact:
Rachel Rogers, Head of Policy, rachel.rogers@resolution.org.uk

Resolution, April 2021