Assessing the Early Impact of the April 2024 NCDR Reforms: Reflections from the Forsters Family Team
Last week, the Forsters Family team was delighted to host a seminar exploring the amendments to the Family Procedure Rules which came into effect in April 2024. The session focused on the enhanced emphasis on non-court dispute resolution (NCDR) and posed the central question: NCDR changes, one year on – new dawn or damp squib?
We were fortunate to be joined in the audience by many of the glitterati of the NCDR world, in a discussion chaired by Rhys Taylor and with a panel comprising Stephen Wildblood KC, Judith Rowe KC, Anita Mehta and our Head of Family, Jo Edwards.
Our audience answered questions on the NCDR changes, the results of which can be seen below. They show a majority view that the changes are yet to promote any real increase in the number of cases settling out of court; likewise, the room generally agreed that the new rules posed a risk to vulnerable people, and that we are yet to see the judiciary fully engage with their new NCDR powers. Whilst the general consensus was that it is still too early to determine the success and long-term impact of the reforms, a number of important themes came out of an engaging discussion to which the audience contributed many of their own ideas.
A shift in culture – but is it enduring?
There was a general sense of cautious optimism about the overall impact of the changes. Many practitioners noted a perceptible shift in the tone and culture of family proceedings, with a greater openness to mediation and other forms of NCDR. Some attendees reported a growth in their meditation practices and evidence of an increase in uncontested applications from recent HMCTS stats, suggesting that the reforms may already be influencing behaviour. As to whether these early signs will translate into lasting change, watch this space.
The mandating mediation debate
The question of whether mediation should be mandated generated lively and diverse views. While some welcomed the idea as a means of embedding a culture of resolution and reducing the burden on the courts, others expressed concern about the potential risks—particularly for vulnerable parties. The discussion underscored the need for a careful and nuanced approach that balances efficiency (and the need for meaningful change, which moves the dial on the huge volume of cases in the Family Court) with fairness and access to justice.
Domestic abuse and the risks of the new rules/moving towards mandating NCDR
A recurring concern was the risk that victims of domestic abuse may feel pressured to engage in mediation/other forms of NCDR, even when it is not appropriate, under the new rules. While the rules include important safeguards, the conversation highlighted the need for continued vigilance and the importance of robust screening mechanisms, which are thankfully becoming more sophisticated.
Judicial engagement and leadership
There was broad agreement that the judiciary has a critical (and greater) role to play in supporting the success of the NCDR reforms. Participants discussed the need for judges to take a more proactive stance in encouraging parties to consider NCDR, whilst also ensuring that such encouragement is applied consistently and appropriately. This would need to be balanced against the backlogs within the family courts and the unfortunate delays parties can already be subjected to.
Calls for greater boldness and learning from abroad
Several contributors urged the profession to be bolder in embracing the spirit of the reforms and to consider more transformative approaches to family justice. Courtesy of an attendee from Melbourne, the discussion also touched on the Australian experience, where similar reforms such as means-tested funding for NCDR, and parties needing to evidence a genuine effort to engage in NCDR before applying to court (with limited exemptions), have been in place for some time and may offer valuable lessons here.
We are grateful to our wonderful speakers and to all who attended and contributed to such a rich and thoughtful exchange. As the new rules continue to bed in, we look forward to ongoing dialogue and collaboration across the sector to ensure that NCDR delivers on its promise of a more constructive, less adversarial approach to resolving family disputes.
For more details of non-court dispute resolution in Forsters’ Family team, visit our page about alternatives to court.
