10 November 2021
Too hasty in going to court. Applicants threatened with costs orders if alternative routes not considered first.
In last month’s conservative party conference, Dominic Raab, the Lord Chancellor and Secretary of State for Justice expressed his preference for alternative forms of dispute resolution being used to settle civil disputes rather than court proceedings.
The Sunday Times have reported that the Lord Chancellor is now considering penalties for those who go to court too hastily and has focused his attention on disputes about children’s arrangements which don’t require judicial intervention.
A source close to Dominic Raab attested to his stance: “Of the 50% of family cases that don’t involve domestic abuse, [Raab] is clear they should be resolvable without going to court and he has commissioned proposals as to how he can make that happen.”
Furthermore, “[Raab] is keen to make mediation the default. He is looking at incentives and disincentives to encourage parents to take that route. The exception is of course those cases involving domestic abuse or safeguarding issues. He thinks those should be kept under a judge’s purview.”
Raab is reported to be considering making it easier to award costs against the parent who is thought to be abusing the court system, whereas currently such orders in private law children proceedings are very rare indeed.
Whilst not every case is appropriate for Alternative Dispute Resolution (ADR), looking to avoid court hearings and costs has been an increasingly popular choice in recent years. Whilst this has been promoted by the government ever since the cuts to legal aid in family cases since 2013, the use of ADR has had a dramatic spike since the beginning of the global pandemic, and it now seems that the government is looking to find further ways to promote and support this option.
Whilst the imposition of costs orders may be too draconian in an area of the law which is already extremely difficult for those going through it, encouraging alternative ways of resolving disagreements between parents is a move welcomed by many family lawyers and mediators.
ADR has many benefits, including often being a cheaper option for the parties but also, now with the extraordinary court back-log, a much faster process. Additionally, ADR can be more flexible and less inflammatory. It is also a good avenue for those seeking to preserve their privacy. The President of the Family Division, Sir Andrew McFarlane has recently advocated for the increase in transparency in family court proceedings, and so for those looking to keep their affairs from the limelight, mediation or arbitration are viable options.