Year of the Code: a YRes perspective on client options
“Use my experience and knowledge to guide clients through the options available to them”
We are now just over one year on from the significant amendments to the Family Procedure Rules, which have been pivotal in changing the way we all should engage with non-court dispute resolution (NCDR). As junior lawyers, we have taken a lot of time and hard work to understand the options available to our clients and how the different processes work practically, to be able to support and guide them to and through the best route. We are not always confident in explaining how a process will work when we have not yet experienced it ourselves, and it can often be even harder to try to sell it to an opposing solicitor who is significantly more experienced and, for so long, has been focussed on the traditional court process to resolve matters. Nonetheless, the rule changes are changing the landscape of family law for the better for the families experiencing such difficult times, and it is important to arm ourselves with the knowledge to try to keep our clients out of the court arena where possible.
What has changed?
The Family Procedure (Amendment No 2) Rules 2023, which have been in force since April 2024, now provide the court with the ability to adjourn court proceedings to encourage engagement with NCDR, and to make costs orders against parties who fail to attend a MIAM or other form of NCDR without good reason. They also expanded the meaning of NCDR to include all (but limited to) of the following:
- mediation
- arbitration
- evaluation by a neutral third party (such as a private financial dispute resolution process)
- collaborative law
When advising a client as to the options available to them, we find the Resolution “Options flowchart” is a really helpful tool to show clients how the different processes work. It can also help illustrate the benefits of utilising NCDR, not least because of how many more steps are visibly set out in the court process!
However, has there really been the seismic shift that was hoped for in the immediate year following the implementation of the new rules? HMCTS data shows that in January to March 2024, there were 11,627 applications made for financial remedies, 71% of which were uncontested and 29% of which were contested. One year on, there has been an increase in the number of applications made in the same period to 11,716 but also an increase in the number of uncontested applications to 74%. This shows a glimmer of hope that we are moving in the right direction.
Keeping NCDR in focus
We welcome the shift toward NCDR as a positive and much-needed development in family law. The emphasis on helping clients resolve matters more constructively and efficiently aligns with the kind of practice we aspire to build. While there is still a lot to learn, we’ve found that the more we engage with the different NCDR processes, the more confident we become in guiding clients through them.
One of the tools introduced to support this shift is Form FM5, which parties are required to file before the first hearing to set out their views on engaging in NCDR. Although there is no obligation to file it again later in proceedings, we’ve seen some practitioners are choosing to do so at subsequent stages to keep the issue of settlement in view. NCDR is something that should be considered at every opportunity throughout proceedings, not just before the proceedings are issued. A top tip that has been passed down is to request a direction for FM5 to be filed before every hearing, not just the first.
There appear to be mixed responses from the judiciary as to how Form FM5 is being considered. We have heard that while some judges are engaging with it and encouraging parties to explore alternatives to litigation, others seem less focused on it. There has also only been a limited amount of cases reported on this issue where judges are adjourning proceedings for NCDR to take place or making costs order against parties who refuse to engage without good reason. Hopefully we will see more of this as time goes on with these new rules in force.
In our own experience, we’ve seen how important it is to keep NCDR on the table throughout proceedings, not just at the start. We also think it is a good idea to consider sending open letters to the other party to invite engagement in NCDR if they appear unwilling or non-committal, both to demonstrate a willingness to engage in an alternative process and to avoid potential cost consequences. These letters often open the door to more constructive dialogue, even where positions initially seem entrenched, and can be sent at any time during the course of a matter to show that there is an ongoing consideration of using alternative procedure.
We’ve also been learning how to talk to clients about the different forms of NCDR and how to match the right process to the right situation. It’s not always easy to explain unfamiliar options, especially when clients are anxious or focused on “having their day in court”, but the more confident we become in understanding the processes, the more open clients are to considering them. When trying to encourage them to get on board with exploring another process, it can be beneficial to explain that this will often enable them to come up with a bespoke solution that works for them and their family. It is not a decision that is imposed by a judge (unless of course you are in arbitration) that neither person agrees with.
Looking ahead
While the civil courts have moved toward mandatory mediation in some areas, family law remains more flexible. The current rules allow for proceedings to be stayed to facilitate NCDR, but they stop short of requiring a specific process. Whether that should change is still up for debate, but in the meantime, there’s a real opportunity for us as practitioners, especially those early in our careers, to help shape the culture and future.
That means continuing to educate ourselves and our clients, using tools like the Resolution Options flowchart, and being proactive in raising NCDR as a live option throughout the course of a case. It also means learning from each other: sharing experiences, asking questions, and building confidence in how we present these options to clients and opponents alike.
One year on, it’s clear that the rules have opened the door to greater use of NCDR, but the extent to which it is being embraced still varies. As junior practitioners, we have a role to play in embedding these changes—not just by following the rules, but by actively promoting a culture of resolution. The Resolution Code of Practice reminds us to use our knowledge and experience to guide clients through their options. That’s a responsibility we grow into and one we should embrace.