- When a couple decides to separate, the path ahead can seem daunting, particularly where the split has been acrimonious. Whilst court proceedings may seem like the only option to determine a financial settlement, increasingly, courts and solicitors are encouraging parties to consider Non Court Dispute Resolution (NCDR) as a means to settle a dispute in a constructive and family-focused manner.
- NCDR encompasses a range of processes and can be used as an alternative to court proceedings or to sit alongside court proceedings – either to determine the entire case or singular issues.
- There are pros and cons to the various methods of NCDR and of engaging in court proceedings and the choice to proceed with a particular process will depend upon the parties' specific circumstances and the facts of the case.
What is NCDR?
Family disputes are not always best suited to be dealt with and resolved in an adversarial court process. Such disputes are often best resolved in a forum more conducive to discussion and agreement.
NCDR comprises a range of methods designed to help parties reach an agreement outside of the court process. It is not limited to dealing with financial settlements upon divorce; it can be used to resolve private children law disputes including arrangements as to how the child will spend their time between their parents, where the children are to go to school and where they are to live.
Common forms of NCDR include mediation, which is where the parties engage in discussion and negotiation facilitated by an independent third party; arbitration, where the parties appoint an arbitrator to make a binding decision on the dispute after considering evidence; and Early Neutral Evaluation / Private FDRs, where an evaluator will give an indication as to what they consider will be the final outcome to a case should it proceed to a final hearing.
Agreements reached in mediation are not legally binding, and therefore, if an agreement is reached, it is advisable to seek the assistance of a solicitor to turn the agreement into a legally enforceable court order. Similarly, where an agreement is reached at or following a private FDR, the agreement would then be drafted into a court order so that a party can enforce the order through the courts should it become necessary to do so.
When dealing with financial arrangements, parties will still be expected to engage in full and frank financial disclosure, in much the same way as they would if engaged in the court process. The need to assess and quantify the assets of the parties before turning to the division of those assets remains the same whichever process the parties engage with.
Judicial encouragement of NCDR
An important change to the Family Procedure Rules (FPR) was brought in on 29 April 2024, designed to promote the resolution of private family law disputes through NCDR. The court has the power to adjourn proceedings to enable parties to engage in NCDR, even where this has not been agreed by the parties. In the financial remedies case of NA v LA [2024] EWFC 113, Mr Nicholas Allen KC sitting as a Deputy High Court Judge implemented this power by staying proceedings until an attempt at NCDR had been made, in circumstances in which the issues in the case were not "unduly legally complex".
When engaged in court proceedings, parties are now required to complete a form "FM5" and serve and file this at least seven days prior to the first hearing to explain to the court the extent to which they have engaged in NCDR and detail why NCDR was not a suitable method of resolving the outstanding disputes in their case. This reflects the increasing encouragement by the courts for parties to try to achieve agreement through alternative means.
Before issuing court proceedings, a MIAM (mediation information and assessment meeting) is expected to have taken place, or a valid exemption must be claimed, such as due to urgency, or in cases where there has been domestic abuse. During a MIAM, a party will speak to a mediator (individually) about the situation and the issues at hand. The mediator will then provide information about mediation and other NCDR processes and will ascertain whether the case is suitable for mediation. With the courts now emphasising the importance of NCDR, MIAMs are not to be seen as a box-ticking exercise, with the focus increasingly on the need to explore, genuinely, whether mediation or other forms of NCDR may be appropriate for the case at hand.
The court may make a costs order against any party who does not engage in NCDR without valid grounds. This could entail that party having to pay a proportion of the other party’s costs for a specific application/hearing, or the proceedings more widely.
Why choose NCDR? Why go to court?
Some of the pros and cons of engaging in NCDR are as follows:
- Engaging in court proceedings is frequently adversarial. Engaging in an alternative form of dispute resolution can have the effect of lowering the temperature of discussions and negotiations; NCDR is designed to promote resolution rather than enhance conflict. This is particularly important in cases where the parties have to continue to co-parent their children effectively once the dust has settled.
- With the court system experiencing significant delay resulting in hearings being listed many months in the future and increasingly a risk of hearings being vacated at short notice, NCDR can speed the whole process up, enabling parties to move on more quickly to their life post-divorce. A lengthier timetable also has cost consequences as it prolongs the litigation.
- NCDR can be tailored to the parties' needs and provides more choice. They can choose the person they wish to facilitate the process (who is likely to have more time than a judge to read into the case fully) and choose the location, which is often preferred to having to conduct proceedings in creaking court buildings with a lack of facilities.
- A further advantage is that it is a confidential process, unlike court proceedings where journalists and legal bloggers may be permitted into a hearing and reporting is allowed (subject to a transparency order, which will usually provide that the parties' anonymity, and that of any child, is to be preserved). This follows a move by the family courts to make the court process more open and transparent.
- Whilst an advantage of NCDR is that it can enable more flexibility, an advantage of the court system is that in cases where one party may be delaying the process through a lack of engagement or not providing full and frank disclosure, the rigidity of a court timetable and the potential for sanctions can be more beneficial in progressing a case.
Whilst NCDR will not be suitable in all cases, the emphasis by the family courts on seeking to reach a resolution out of court means engagement with NCDR is not only encouraged but expected, and increasingly so, with potential sanctions if it is not at least attempted.
How Mishcon de Reya can help
At Mishcon de Reya our team of specialist family lawyers support separated couples and families in conflict to reach a resolution in as constructive a way as possible.
We work with clients to facilitate a bespoke method of non-court resolution, including through our Non-Court Dispute Resolution Hub. Where court proceedings are necessary, we offer tailored advice, support and guidance from the point of application through to final order and beyond.