What is Non-Court Dispute Resolution (NCDR)?

Separation and divorce can be an emotional and financial strain for all parties involved, especially when there are children of the family to consider. The conflict which can sometimes feature in traditional litigation can leave families feeling bitter and resentful. There are, however, alternative options available that promote a more amicable and conciliatory approach and which can also avoid entering an already overburdened Court system. Non-Court Dispute Resolution (NCDR) is the collective name for these alternatives.

It has always been important to ensure that these alternatives to court were considered, but since April 2024, a change in the the Family Procedure Rules means that there is even more emphasis on the early resolution family disputes outside of the Court arena, whether relating to financial matters or child arrangements. 

The Court could previously consider referring parties to NCDR provided that the parties agreed, whereas now the Court can order an adjournment of proceedings, at any point of its choosing, without the agreement of the parties if the timetabling of the case allows sufficient time for NCDR to be undertaken. 

Where an application to the Court has been made, the Court will want to see evidence that NCDR has been attempted or satisfactory justification as to why not.

The Court can’t compel either or both parties to participate, but the adjournment can allow the parties the opportunity to investigate the NCDR options available to them. Furthermore, a failure to participate without good reason could allow the Court at a later stage to penalise the non-cooperative party with costs. 

In a very recent 2024 case [NA v LA], the change to the rules has already been used by the Court by adjourning ongoing family proceedings to allow the couple to consider their NCDR options. The Judge stated:

“I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.”

The approach taken by the Judge is likely to become more common.

Collaborative divorce is an alternative to traditional litigation with emphasis upon co-operation and problem solving.  In a collaborative divorce each party is represented by their own collaboratively trained solicitor.  The solicitors work together with the couple to negotiate and reach a settlement with the commitment that neither of them will resort to making an application to the Court.  The process involves a series of meetings at which both parties and their lawyers are present to discuss and resolve issues arising from the separation. 

Couples can have access to a team of non legal experts within the collaborative process including financial advisors, accountants and family therapists who can provide guidance and support through the process.  This is an inter-disciplinary approach which ensures that all aspects arising from the separation are addressed and considered.

Judith Wheeler at our Leamington Spa office is a trained collaborative lawyer and can conduct collaborative cases. 

Family mediation is a voluntary process where a neutral third party (the mediator) assists couples in dispute to hopefully communicate and negotiate agreed terms more effectively.  The mediator facilitates discussions either face to face or remotely and can assist in finding solutions that are acceptable to both parties.  Mediation can be used to address a wide range of issues including child arrangements and financial matters arising from a separation.  The goal of family mediation is to empower couples to make their own decisions and reach agreements that are in the best interests of their family.  Where child arrangements are being discussed, some mediators are able to offer child inclusive mediation to allow the child’s voice to be heard.

Where does your family solicitor fit in? 

• Your family solicitor can make a referral to mediation for you.
• Provide advice to you in parallel to the mediation regarding the terms being discussed.
• Assist with drafting Parenting Agreements or Consent Orders to formalise the terms of agreement that have been negotiated in mediation.
• Can attend the mediation sessions themselves in a hybrid mediation to support and advise you during the mediation process.

The purpose is to identify the issues and determine whether they can be resolved with the help of an independent impartial evaluator. 

The evaluator is commonly a retired a Judge or an experienced family solicitor or barrister. They are appointed with the agreement of both parties and at joint expense. 

Obtaining an early joint unbiased view is intended to enable the couple to reflect upon their positions and to hopefully reach an agreement without the need to involve the Court.  It offers flexibility in terms of who is appointed, where and when the evaluation takes place.  Whilst neither party is bound by the recommendation of the evaluator, it is hopes that the evaluation helps the parties to reach consensus. 

We can arrange an early neutral evaluation if your case is suitable. 

Family arbitration involves the appointment of an impartial arbitrator to resolve the dispute between your ex-partner and yourself. It is intended that the decision of the arbitrator will be binding on both parties and can mean achieving the certainty of a final decision far more quickly than using the Court system. 

The arbitrator is appointed and instructed jointly and the process can take place at a chosen time and venue to suit the parties and the professionals.  The arbitrator would have time to fully consider the case without the pressure of other Court cases in the list as would be common with the Court process. This secures an earlier resolution and is therefore usually more cost effective. 

We can arrange an arbitration if your case is suitable. 

A private financial dispute resolution is replicating the financial dispute resolution hearing that would usually take place during contested financial remedy proceedings before the Court, but takes place outside of the Court system. 

The FDR is usually the second hearing during traditional Court proceedings at which the Judge gives an indication as to how they consider the case could be settled and which is intended to assist the parties reaching an agreement at Court to conclude the proceedings. A private FDR mirrors that process, however, it is possible to arrange a private FDR during existing financial remedy proceedings or before an application is ever made to the Court. 

Each party is represented by their own solicitor or barrister during the Private FDR.

The private FDR “Judge” is usually a retired Judge or an experienced family lawyer who gives an indication as to how they consider the financial dispute between the parties should be determined. Neither party is legally bound by the indication, but it hopefully allows the terms of a settlement to be agreed either on the day of the private FDR or soon after with the help of their lawyers. 

We can arrange a private FDR for you if your case is suitable. 

“Resolution Together” enables a couple to approach their separation together with the legal advice of one lawyer. This process is not suitable for all couples and there can be no obviously legal conflicts for the case to be able to proceed on this basis. Advice is provided by the lawyer jointly to both parties regarding financial matters and/or child arrangements.  The intention is that an agreement can be reached and joint decisions formalised between the couple without the need for any attendance at Court.  This process would usually need to be undertaken in parallel with the work of a mediator and/or family consultant. 

• Confidentiality – Each approach provides a safe and confidential space for couples to discuss their concerns and explore potential solutions.  It allows couples to maintain their privacy. 
• Cost effective – These options are generally more cost effective than litigation and funding contested Court proceedings. 
• Faster resolution.  Opting for NCDR alternatives can often lead to a quicker resolution compared to Court proceedings which can be lengthy and time consuming.  Couples can control the pace of the negotiations. It can allow couples to move forward with their lives and minimise the emotional toll of prolonged legal disputes.
• Preservation of relationship – There is an emphasis upon open communication and co-operation which can help preserve relationships especially when there are children involved. It encourages couples to work together and remain child focussed which can assist in forging a healthy co-parenting relationship. 
• Control over the process - Couples have more control over the outcome of their case as they are involved in the decision making process and can tailor the agreement to meet their specific needs or concerns. 
• Less Adversarial - NCDR encourages co-operation and open communication between separating couples. This can help reduce conflict and create a more positive environment for resolving disputes. 

If you are considering a separation or divorce then it is worth exploring these options to find a resolution that works for you and your family, hopefully without the intervention of the court.  

Our team of family solicitors are members of Resolution which means that they are already committed to trying to help you find an amicable and constructive way to navigate the challenges of separation.  We can advise you of the NCDR options available to help you choose which would be most suitable and to make referrals to other professionals as may be necessary.