ADR has always been a voluntary option, pre-court proceedings for parties wishing to resolve their matters outside of court. 

As of 29^th April 2024, the courts will review the parties’ reasons if they have not considered alternative dispute resolution (ADR) pre-court proceedings, and if they have failed to attend a Mediation Information & Assessment Meeting (also known as ‘MIAM’). The courts will now take this into consideration when making costs orders and it is an important factor that your solicitor should consider when negotiating your settlement. 

If the divorce also requires financial remedy proceedings, failure to engage in ADR without a good reason may result in the courts departing from the general principle of no orders as to costs (meaning each side pays their own costs), instead you could be lumbered with the other side’s costs for failing to engage in ADR. 

Alternative dispute resolution (ADR) is an umbrella term for the different ways you (and your soon to be ex-partner) can resolve disputes without going to court. Common ADR methods include: round tabling, mediation, arbitration, and early neutral evaluation. These ‘processes’ were previously optional (except for an initial mediation assessment meeting) with no repercussions if not attended, and many parties could bypass ADR if they chose not to consider it. 

This however is no longer the case, and parties who cannot give a ‘good reason’ for attending a MIAM or non-court dispute resolution could face cost orders against them. ‍

How the ‘New Law’ will apply to parties 

New Family Procedure Rule 3.3(1A) provides that each party must set out their views on why they should/shouldn’t use non-court dispute resolution as a means of resolving the matters raised in the proceedings. 

The amended Family Procedure Rule 3.4(1A) provides that the court may adjourn proceedings to ‘encourage’ parties to undertake non-court dispute resolution. The agreement of the parties is not needed.

Consequences of failing to undertake ADR?

Failing to engage in ADR, may result in a penalty in costs. As we have seen through recent case law the courts can use their own initiative to penalise the party opposing ADR. This could result in delays, an increase in legal costs and unnecessary stress for all. Parties must be wary of this when deciding to ignore requests from the other side to use ADR.

When is ADR is not appropriate?

Although the new rules will have an impact on how cases are considered, the Court cannot insist parties undergo ADR if the methods of ADR proposed are not suitable for resolution in that way. For example, where there are ‘real’ safeguarding or domestic abuse based issues in the case.

What if the other party chooses not to use ADR?

Where ADR is dismissed by the other party and there is no good reason to dismiss it, the court can order the refusing party to set out in a statement why they think ADR is not appropriate.  If the court is not satisfied by the reasoning, then penalties may flow from that.

Next Steps

‍If you are seeking advice or have any questions in relation to this article you can contact us by calling 01293 596947, or by emailing alison.cole@stevensdrake.com. Please get in touch.