Court-led dispute resolution: an insider's thoughts on a change of direction

How often do we, as family lawyers, find ourselves advising a party on a financial dispute which needs a speedy outcome – but the value of the dispute is about to be dwarfed by the likely costs? It’s a common scenario, which leaves us wishing there was a more time and cost-efficient way to deal with matters – with a bit of ongoing judicial input as needed.

Case study

I was in this position in late 2020, when instructed by a client who needed to vary an order made in 2018 to ensure childcare costs were met, in part, by her former husband, so she could continue to work.

An application to vary the original order was made, as attempts to reach agreement on the issue were unsuccessful – but even if we were going to use the fast-track process, a determination of issues through the usual court process was unlikely to happen before mid-2021. That would cause financial difficulties for my client, who would face a considerable costs burden, with little or no prospect of recovering those from her former husband.

When the application was issued, we applied for interim orders too. After exchanging financial statements by agreement at an early stage, we were fortunate enough to be given an early date for the interim application and for directions to be heard before Mr Recorder Allen QC. His approach from the outset was robust and extremely helpful in bringing matters to a conclusion.

Non-court resolution

After dealing with the application for interim orders, which helped my client to meet childcare costs in the short term, the judge turned his focus to his powers under Family Procedure Rule 2010 part 3, – ‘Non-court Resolution’.

Rule 3.2 states: “This Chapter contains the court’s duty and powers to encourage and facilitate the use of non-court dispute resolution”.

Rule 3.3 states:

(1)   “The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate”.

Mr Recorder Allen QC did just that. Rather than accede to any suggestion of largely standard directions being given, with the aim being of having a final hearing listed at some point to determine the issues, he determined he would exercise the powers available to him under rule 3 – including the power to adjourn proceedings.

He made it clear he thought the parties could, and should, resolve matters in mediation – although neither party was confident that would be successful. He also indicated mediation was a better potential route than a round table meeting, not least as it had been attempted before unsuccessfully.

So, an order was made which adjourned the hearing on the basis the parties should avail themselves of the opportunity of mediation. He further required a joint letter should be written by solicitors to provide an explanation of progress being made, to determine what further action was necessary.

A way through?

The parties agreed to go to mediation, and, although they were not able to agree matters in mediation (no doubt conscious of the solicitors’ ongoing duty to report back to the judge), they did manage to come to a substantive agreement on all but one issue. The hearing was adjourned again, given this progress.

However, when the parties were unable to agree the final issue, we asked the judge to determine that one outstanding matter on paper. This was on the basis it was agreed the parties were Xydhias-bound with regard to the substantive issues, and it would be accepted if the judge’s decision was not what either party sought.

Efficiency in justice?

Short written submissions were considered by the judge, who made a determination on the final issues so an order could be drafted and approved. This occurred less than three months after the initial hearing, and ahead of any expected hearing date, had matters proceeded as usual. In addition, the costs savings were significant – and, as the substantive terms were agreed, both parties were invested in the outcome, with less likelihood of non-compliance.

It was a novel experience for a judge to take such a proactive approach, making the most of the options under part 3. This made a world of difference for my client, as her dispute was resolved much more swiftly than had been hoped, in a much more cost-efficient way.

My advice would be that, when in a similar situation, solicitors and counsel should not be afraid to ask their judge to remember their duty and powers under part 3.

Fiona Wilson is a partner and head of the family team at Goodman Derrick LLP: gdlaw.co.uk