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Earlier this month, family lawyers logged on to X (formerly Twitter) to join in #FamilyLawHour on the topic of non-court dispute resolution (NCDR) and to discuss the new provisions in Part 3 of the Family Procedure Rules 2010 (FPR 2010).

This family law community event is organised by and takes place on the first Tuesday of each month, with a different topic and host each time. The #FamilyLawHour team kindly invited me to host this month’s event. I chose NCDR as a topical area of family law. Having drafted some questions in advance and prepared polls to gather views on key areas, it was great to see the level of interest in this area.

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Do you think FPR 2010, Pt 3 (non-court dispute resolution) has historically been underused and if so, why?

The first question considered whether FPR 2010, Pt 3 has been underused and if so, what the reasons for that might be. Has it just been a ‘tick box exercise’?

Clare Williams @ClareWPSL: "I remember when the "new" rules came in thinking this was a real revolution but like you say it just became a tick box exercise, like the statement of reconciliation but a little bit more bother."

Is the addition of the new Form FM5 (statement of position on non-court dispute resolution) a positive development?

The second question considered the new Form FM5 and whether this is a welcome development. Some were critical of the length of the form and raised the challenges litigants in person might face. 

transparency project @seethrujustice: "The form isn’t clear about situations where NCDR was inappropriate because a party was exempt from a MIAM. Is it realistic for both parties in that situation to exchange details of the reasons they didn’t engage in NCDR?"

In financial remedies cases, will the power to encourage NCDR at FPR 2010, 3.4(1A), backed by potential costs penalties at FPR 2010, 28.3(7), have the desired effect to help parties reach agreement outside court?

The third question looked at the potential costs penalties introduced by changes to FPR 2010, 28.3(7) which aim to encourage parties to utilise NCDR. Whether Form FM5 will take on an increased significance when the question of costs arises remains to be seen.

Tristan Harvey @TrisHarveyQEB: "Although it may be a document which has increasing significance when it comes to the question of costs (if a party fails without good reason to engage in NCDR)?"

Is mandation of NCDR the next logical step if these measures fail to have sufficient impact, despite the outcome of the recent MoJ consultation?

The final question looked longer term and queried whether mandation of NCDR in family proceedings is likely given the development in the civil arena and the decision in Churchill v Merthyr Tydfil [2023] EWCA Civ 1416.

Gareth Evans @DgeEvans: "It’ll only be any use if the judges actually refer to it and adjourn/encourage the use of ADR, rather than just cracking on. Until they have the power to require ADR, I expect it’ll be the latter"

The polls produced some interesting results. Perhaps unsurprisingly, the majority of practitioners felt that FPR 2010, Pt 3 was underused in the past:

Opinion about whether the removal of the mediator’s exemption was a good idea was split:

Interestingly, nobody thought the amendments to costs at FPR 2010, 28.3 would have the desired effect in steering parties away from court:

Most did not think that the new NCDR provisions will lead to an uptake in cases settling outside of court and lessen the burden on the family courts:

Many thanks to Laura Ward and Kate Rivera of for running the #FamilyLawHour account and for asking me to host. The discussion was both positive and informative and a great opportunity for the family law community to come together.

Kirstie Gibson is a solicitor and Professional Support Lawyer at ½Û×ÓÊÓƵ UK.

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