[2025] EWHC 1713 (Fam)

There is also a separate policy point that arises on the facts of this case. The parties were engaged in mediation as to if (if not simply when) B should return to Portugal. Ms. Guha submitted that “the passage of time before concrete measures were taken take this case away from the norm” and particularly as F had the benefit of legal advice in Portugal, two and a half years prior to issuing proceedings “is an exceptional time to wait”. However, a party should be allowed to enter mediation and/or use other forms of non-court dispute resolution without fear that the time taken in seeking to resolve matters outside of court may be used against them (whether as part of the defence of settlement or otherwise) should resolution in a non-court forum not ultimately be achieved and court proceedings thereafter issued. It would be contrary to the court’s “duty” pursuant to FPR 2010 Part 3 to consider non-court dispute resolution and likewise contrary to the overriding objective pursuant to FPR Part 1 to deal with cases “justly” if a court acceded to a submission made by a respondent to an application for summary return that the merits of a settlement defence and/or the arguments in relation to the non-exercise of the discretion were strengthened because court proceedings were not issued earlier when this was because the parties were engaged in non-court dispute resolution.