Non-Court Dispute Resolution “NCDR”

23rd January 2025 | Alex Anastasiou | NCDR, Family Law, Court

Family Mediation Week 2025, taking place from 27–31 January, provides an excellent opportunity to raise awareness about the various tools available for settling child and financial disputes outside of court. The changes to the Family Procedure Rules (FPR), effective from 29 April 2024, were designed to alleviate the strain on the court system. Embracing Non-Court Dispute Resolution (NCDR) offers numerous advantages, including flexibility, control over the pace and privacy of proceedings, and lower costs when compared to traditional litigation—all while remaining efficient.

What methods of Non-Court Dispute Resolution are currently available

The definition has deliberately left the door open, so that new methods of NCDR may be embraced as they arise. NCDR refers to methods of resolving disputes outside the formal court process. These include, but are not limited to, mediation, arbitration, early neutral evaluation, and collaborative law.

Mediation

Mediation involves a neutral, professionally trained mediator who helps parties resolve their disputes in a non-confrontational manner. The mediator facilitates discussions and helps identify potential solutions but does not impose decisions. This process allows the parties to negotiate their own agreement, often with the support of solicitors as needed.

Arbitration

Arbitration allows parties to appoint an arbitrator to make a binding decision on their dispute. The arbitrator is an expert in the area of the dispute and establishes a timetable tailored to the parties’ needs. Arbitration can be used to resolve specific issues, such as those following a Financial Dispute Resolution (FDR), and typically takes place in a less formal setting than a courtroom.

Early Neutral Evaluation/Private FDR

A neutral is likely to be a solicitor, barrister or retired Judge. They can be appointed jointly by a separated couple to provide a non-binding indication regarding the issues in dispute. The parties can be represented and the neutral will hear both party’s submissions before offering their views on what a fair outcome would look like if they were deciding the matter at trial. The purpose of the indication is to help the parties narrow the issues, assess the strengths of their case and thereby allow them to negotiate an all-embracing agreement. This method can be utilised even once court proceedings have been commenced, for example the FDR might be in 9 months but rather than wait the parties can appoint a private FDR judge who can hear the matter sooner. The process can also be used in cases where there are disputes regarding the arrangements for children to include relocation.

Collaborative practice

In collaborative practice, the parties and their collaboratively trained lawyers work together in a series of meetings to resolve the dispute. This process eliminates the typical back-and-forth between lawyers and may involve experts such as financial advisors or social workers. The parties agree to resolve the matter outside of court, and if they do not reach an agreement, the lawyers are precluded from representing them in court proceedings.

Conclusion

It is now a requirement in financial remedy or private law children proceedings for parties to consider NCDR as a means of dispute resolution. This was reinforced in the case of NA v LA [2024] EWFC 113, where the judge ordered the parties to engage in NCDR before proceeding with court actions. Parties should be mindful of the potential cost implications of failing to engage with NCDR options.

If you are contemplating divorce or separation, and would like further information on NCDR please get in touch.