Judge uses new power to “encourage” ADR in absence of agreement

Divorce: Stay ordered so parties can mediate

A High Court judge has used new powers to “encourage” the use of alternative dispute resolution (ADR) in family proceedings in the absence of agreement between the parties.

Staying financial proceedings in a high value divorce case, Nicholas Allen KC said ADR would be to the “emotional and financial benefit” of both parties as well as their children in a “paradigm case” for the new powers.

Under changes to the Family Procedure Rules last month, courts are now under a duty to encourage parties to undertake non-court dispute resolution (NCDR), and can adjourn cases for that reason, without needing the parties to agree to it.

A party’s failure to attend NCDR without good reason can justify judges departing from the general starting point that there should be no order as to costs.

Delivering judgment in NA v LA [2024] EWFC 113, Mr Allen, sitting as a deputy High Court judge, said there was “no need” for financial disclosure to be given prior to parties engaging in NCDR, as it would “almost invariably provide for such disclosure to be given as part of the process”.

Counsel for H said her client was open to NCDR, but counsel for W argued that a first appointment with a judge would be required, followed by a financial dispute resolution hearing in court.

Judge Allen said counsel for W, having “repeated the need for disclosure… described my suggestion of a stay as being premature as W was ‘semi-blind’ in relation to the parties’ assets and that until transfer of the family home to her she had no assets in her own name”.

Counsel for H “endorsed my suggestion of a stay to enable the parties to attempt settlement”.

Mr Allen said that “notwithstanding that it is seemingly a so-called ‘big money’ case”, with a family home in London worth £8m and another one in the city bought for £6.5m and being refurbished at the cost of a further £6.5m, it did not appear to be “unduly legally complex”.

There was nothing that suggested the case was unsuitable for NCDR and the court was under a duty to encourage it.

Mr Allen said no Mediation Information and Assessment Meeting (MIAM) had taken place in the case, on the grounds of urgency. Given the terms of various orders since made, however, this exemption was no longer applicable.

Rather, this was “a paradigm case” for the court to exercise its new powers to encourage NCDR, which would be to the parties’ “emotional and financial benefit as well as to the benefit of their children”.

He ordered that the financial proceedings be stayed, and the parties tell the court what engagement there had been in NCDR and whether any issues had been resolved.

Joanne Wescott, family law partner at Osbornes Law, said Judge Allen had “given teeth to mediation” in the ruling.

“A MIAM can no longer be viewed as a tick-box exercise by family lawyers to get through the ‘golden gate’ to issue an application and get before a judge.

“There are some fantastic family law mediators out here and mediation has proved to be an effective method of resolving disputes and keeping costs to a minimum.”

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