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The promotion of non-court dispute resolution.

View profile for Gail Strange
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The work lawyers carry out within family law is shaped by guidance and protocol in the first instance – for example, Resolution members adhere to the guiding principle that we deal with cases in a conciliatory and non-confrontational way.

Once court proceedings have been issued, we are governed by the Family Procedure Rules which set out by law the process we must follow. 

Whilst the Rules presently require that mediation must have been attempted before proceedings for private family law arrangements (both regarding arrangements for the children or finances following divorce), they are changing on 29 April 2024. 

Currently, the applicant must obtain a certificate from a mediator to confirm that mediation is either unsuitable in their circumstances (perhaps due to domestic violence), that the other party has refused to engage or that mediation has been attempted but has been unable to resolve the issues in dispute.

The Rules from 29 April 2024 aim to promote the early resolution of all family law disputes through non-court dispute resolution and thereby avoid the need to involve the court in making decisions in family matters.

Non-court dispute resolution will include mediation, arbitration, evaluation by a neutral third party, private Financial Dispute Resolutions and collaborative law.

Mediators will be required to inform the parties about the most suitable forms of non-court dispute resolution and guidance on how to access them.  The definition of domestic violence will be widened to include “domestic abuse” which will exempt the parties from attending mediation.

The court could previously temporarily halt proceedings to allow the parties to attend mediation only if this was agreed by both parties.  Given that the application process will require the parties to explain their position on non-court dispute resolution so that where mediation or other form of dispute resolution has not been attempted, the court will now timetable proceedings to include time for steps to be taken to do so and the parties’ agreement will no longer be necessary.

One of the most important changes to the Rules is that in financial proceedings if a party has not engaged in non-court dispute resolution without good reason, the court can order costs against that party.  This is a departure from the general starting point that no order for costs should be made.

If you are considering taking court action to resolve a family law matter – either concerning the arrangements for your children or for financial provision following a separation - speak to one of our family lawyers who can advise you on the options for non-court dispute resolution.  We have a wealth of experience and collaborative lawyers who can advise you on the options and steps to take.