Since 29 April 2024, family lawyers have had a new set of procedural rules to reckon with—changes that bring mediation and other non-court dispute resolution (NCDR) methods right into the spotlight. These aren’t just gentle nudges toward ADR anymore. The new Part 3 of the Family Procedure Rules (FPR), along with its Practice Direction 3A, reframes the conversation: Why aren't you settling out of court?
What’s Changed?
Under the revised FPR 3.3(1A), the court must consider at every stage of proceedings whether NCDR is appropriate. Judges now have an express power to adjourn proceedings to encourage parties to explore NCDR, including mediation, arbitration, neutral evaluation, or collaborative law.
The accompanying Practice Direction 3A makes clear that parties (and their advisers) will be expected to explain what steps they’ve taken to explore NCDR—and why, if they haven’t, it wasn’t appropriate. This is more than lip service. It’s a cultural shift with bite.
Consequences for Non-Engagement
There are real consequences for refusing to engage in NCDR. While the court can’t compel parties to mediate, it can penalise those who unreasonably refuse to try. That might mean costs orders or even being viewed less favourably in the court’s discretion. The pressure is on to be seen to play fair—even before the first hearing.
But the most interesting, and possibly contentious, development lies in how this shift interacts with the doctrine of “without prejudice” communications.
The “Without Prejudice” Fog Lifts?
A recent article in the Financial Remedies Journal raised a fascinating and important point: if parties are now expected to explain their refusal to mediate, what happens to the cloak of “without prejudice” privilege that has traditionally surrounded settlement discussions?
In financial remedy cases, especially, parties have historically relied on “without prejudice” letters to negotiate freely. But under the new regime, a party might be asked to disclose whether mediation was proposed and why it was refused. Can that be done without crossing the line into protected communications?
The answer may be context-specific. Courts can (and do) look behind the veil of “without prejudice” in costs arguments or bad faith conduct. The Mostyn J-style pragmatism may well win out: if a party’s conduct suggests a tactical refusal to mediate, expect judicial disapproval, regardless of how the refusal was framed.
Practical Tips for Clients (and Lawyers)
Document your mediation efforts—but carefully. Offer mediation early, and in a way that you’d be happy to show a judge later if necessary. If you refuse, be ready to explain it. “It wouldn’t have worked” won’t cut it anymore.
Don’t hide behind privilege to block scrutiny. While settlement negotiations still deserve protection, expect increasing judicial appetite to pierce that veil when fairness demands it.
And for the practitioner drafting that next Without Prejudice letter? Maybe include a line that you are “open to discussing appropriate forms of non-court dispute resolution.” It won’t bind your client—but it might just save them in costs later on.
Conclusion
The court's message is clear: don’t come to court before you’ve tried to stay out of it. The new rules aren’t just procedural tweaks—they reflect a growing judicial impatience with litigation-first thinking. For family lawyers, that means shifting our strategic mindset. And for clients, it might mean spending an hour with a mediator now to save twelve months in court.
