Non-Court Dispute Resolution
When a relationship breaks down, reaching agreements about children, assets or income can be extremely challenging. While court proceedings are sometimes unavoidable, they are not always the best way to resolve disputes. Increasingly, separating couples are turning to non-court dispute resolution (NCDR) methods to help them reach fair and practical agreements, in the most time and cost-effective way. This trend has been driven in part by significant delays in the family court system, where heavy caseloads mean hearings can take many months to be listed and concluded. In addition, new rules introduced by the family courts place a greater emphasis on exploring alternatives to litigation. Judges now have wider powers to encourage, and in some cases direct, parties to consider mediation, arbitration or other forms of NCDR before or during proceedings. As a result, resolving matters outside the courtroom is often faster and more cost-effective, but also increasingly expected as part of a responsible approach to dispute resolution.
What Is NCDR?
NCDR refers to a range of processes that allow people to resolve disagreements without having to go through the court system. These approaches focus on communication, cooperation and reaching mutually acceptable outcomes, often saving time, money and emotional strain compared with traditional litigation.
Solicitor negotiation
Many couples resolve matters through solicitor negotiation, where solicitors communicate directly, either through correspondence or in joint settlement meetings, to reach agreement. This is particularly useful where communication between the parties is difficult.
This approach provides professional support throughout and can result in an approved court order without the need for court proceedings. Most parties will engage in negotiation before considering other methods of NCDR, or indeed court proceedings, if negotiations stall. We can support clients through the negotiation process and, if necessary, advise them on what might be the most effective next step, whether NCDR or court-proceedings.
Mediation
One of the most common forms of NCDR is mediation. This involves a neutral, trained mediator who helps both parties talk through their issues and work towards an agreement. The mediator does not take sides or make decisions, their role is to facilitate discussion and help the couple to identify areas of agreement and possible compromise.
Mediation is typically quicker and consequently more cost-effective than going to court, and it encourages constructive communication that can improve future relationships. Mediation can be used to address discrete issues, for example, what school children will attend, or deal with wider more general issues such as how the parties’ finances will be dealt with. However, it does require both parties to be willing to take part, and any agreement reached will only become legally binding once it has been converted into a consent order and approved by the court.
It's important to note that mediation is not right for all cases, for example cases where there has been domestic abuse or where there is a significant imbalance of power between the parties. We can help clients to consider whether mediation is the right step for them, as well as supporting them throughout the process.
Collaborative law
Another option is collaborative law, where each person instructs a specially trained collaborative lawyer and all four participants, both clients and their lawyers, meet together to discuss the issues. The process promotes transparency and problem-solving rather than confrontation, and allows both parties to be fully supported by their solicitors while keeping discussions constructive.
It can help maintain a more positive relationship and avoid the uncertainty of court proceedings. However, if the collaborative process breaks down and the matter has to go to court, both collaborative lawyers must withdraw and new solicitors will need to be appointed, which can increase costs. Whilst we do not offer formal collaborative law options at FLC, we can design a bespoke service that is very similar, helping to bring clients together to resolve disputes.
Private hearings
Private hearings are an increasingly popular form of NCDR. They mirror the structure of court-based hearings but take place privately. Both parties will agree to jointly instruct a tribunal, typically a senior barrister, to act as a judge. The judge’s decisions are not binding on the parties but are intended to act as a “reality check” to help parties to move forward constructively.
The most common form of private hearings is a private Financial Dispute Resolution (as discussed below). Private hearings can also be used to help parties to agree issues about children.
Financial Dispute Resolution (pFDRs)
A private Financial Dispute Resolution hearing, or pFDR, is a type of private hearing, it mirrors the form of a court-based FDR. The parties agree to jointly instruct an independent evaluator, often a senior barrister. They also instruct barristers to represent them and present their positions, just as they would in court. The evaluator then gives an impartial indication of what a court might decide if the case were to proceed to a final hearing. This “reality check” often helps parties to reach a negotiated settlement on the day (or shortly after), avoiding the need for further litigation. As with a court-based FDR, private FDRs are “without prejudice” hearings, which means that any discussions, or offers, cannot be referred to later, if the parties do not reach an agreed settlement.
Private FDRs are usually much faster to arrange than court hearings, as dates can be chosen to suit the parties, and the environment is more relaxed and confidential. The evaluator’s time is dedicated solely to the case, meaning the process often receives far more focused attention than would be possible in an overburdened court list. While there is a cost to holding a pFDR, this is often outweighed by the savings in time, stress and potential legal fees if settlement is achieved.
Arbitration
In arbitration an independent arbitrator, often a senior barrister, is appointed to make a binding decision on the issues in dispute. It is similar in some ways to a private court hearing, but the key difference between the two is that, while a pFDR judge just gives an indication, the arbitrator’s judgment is binding on the parties. Arbitration can be used to determine discrete issues or the parties’ finances or issues around the children as a whole.
The parties choose their arbitrator and agree on the timetable, which offers greater control than a traditional court process. However, arbitration can be more expensive than mediation or negotiation, and the arbitrator’s decision is final, with only limited rights of appeal. This can be off-putting for some parties who want to maintain more control over the outcome.
The benefits of avoiding court
Engaging in NCDR can bring many advantages, it often reduces stress and hostility, keeps decision-making in the hands of those directly involved, and is generally more cost-effective than litigation. It can also help to shield children from conflict and allow for creative, flexible solutions that better meet a family’s particular needs.
Even when the issues are complex, starting with a non-court process such as mediation can help to narrow the areas of disagreement, saving considerable time and expense later on.
The push towards NCDR
While court proceedings are sometimes necessary, the courts now expect parties to engage meaningfully in NCDR. New rules have been implemented which give judges the power to pause court proceedings and direct that parties engage in NCDR at any stage of their proceedings, with potential cost consequences if it is not taken seriously. These rules are designed to encourage cooperation, narrow the issues in dispute, and reduce unnecessary delays and costs.
Is NCDR right for you?
NCDR is not suitable in every case, where there is an urgent need for court intervention, or issues over disclosure, formal court proceedings may still be necessary. However, for many separating couples, resolving matters outside of the court provides a more respectful, constructive and cost-effective way to move forward.
Where allegations of domestic abuse have been made, safeguards can be put in place to ensure that all parties feel safe and comfortable to proceed with NCDR. In these circumstances, it is particularly important to carefully consider which forum will be the most effect to resolve disputes whilst ensuring that vulnerable parties feel supported and appropriately protected.
If you are considering your options, it is always best to seek advice from a family law solicitor. We can help you to decide whether NCDR is right for your family, and if so, which method is most appropriate, as well as supporting you throughout the process until matters are concluded.
