X v Y

Family courts should make a serious and sustained effort to resolve disputes through suitable non-court dispute resolution. The court must consider its suitability at every stage, having regard to mediation steps already taken, welfare, expense and effective case management. The present Family Procedure Rules 2010 do not empower the court to compel participation, but they permit active encouragement and adjournment where appropriate. The court should keep non-court dispute resolution under review, particularly where parties have not tried it before proceedings. Any intervention must be safe, proportionate and consistent with access to a fair hearing.

This was a pre-hearing review in financial remedy proceedings following a 15-year marriage. The parties had assets valued at approximately £27m–£29m, substantial litigation costs, and an unsuccessful financial dispute resolution hearing. They had not attempted non-court dispute resolution before issuing financial remedy or Children Act proceedings. The final financial remedy hearing was listed for June 2024. The central issue was how the court should use its case-management powers to encourage the parties to attempt non-court dispute resolution before trial, while preserving fairness and avoiding prejudice.

Decision. The court directed the parties to make a meaningful attempt to resolve their financial dispute through non-court dispute resolution and approved directions structured to preserve time and resources for that purpose.

1. Under rule 3.3 of the Family Procedure Rules 2010, the court must consider at every stage whether non-court dispute resolution is appropriate. Relevant matters include whether a MIAM occurred, whether an exemption applied, and whether mediation or another process had been attempted and with what result.
2. The duty operates within the overriding objective. Saving expense, allocating court resources appropriately, active case management, encouraging suitable non-court dispute resolution and helping parties settle are all relevant considerations.
3. The rules presently do not give the family court power to require parties to engage in non-court dispute resolution. The amendments due to take effect on 29 April 2024 will strengthen the court’s ability to encourage participation, adjourn proceedings where appropriate, and take unreasonable failure to engage into account in financial remedy costs decisions.
4. Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ 1416 establishes that an order for non-court dispute resolution is permissible where it does not impair the essence of the right to a judicial hearing and is proportionate to achieving fair, speedy and cost-effective settlement. The Court of Appeal declined to endorse a rigid checklist.
5. Applying considerations suitable to family disputes, an adjournment would have been justified under the amended rules. Both parties were represented, there was sufficient time, settlement was realistically possible, non-court dispute resolution was cheaper than a contested hearing, neither party faced significant imbalance or prejudice, and neither had a convincing reason for refusing the process. The court therefore deferred expenditure on litigation and invited the parties to report whether the dispute had settled or narrowed.