A look at the requirements for Non-Court Dispute Resolution in family law cases

The backlog of cases in the family law courts, which was worsened by the Covid-19 pandemic, remains significant. It is more important now that families consider all the options available to them, to reach resolution of their case. In April 2024 changes to the Family Procedure Rules (the rules that govern how family court cases are conducted) came into effect. These changes have emphasised the court’s requirement for every case to consider NCDR where possible and where appropriate. Non-Court Dispute Resolution (formerly called Alternative Dispute Resolution) is defined as “methods of resolving a dispute other than through court process, including but not limited to mediation, arbitration, evaluation by a neutral third party and collaborative law”.  

It is now expected that the parties at court will have actively engaged in NCDR and if they do not, the judge may scrutinise the reasons why not. If either party has not engaged in NCDR without a good reason they may well find themselves at risk of a costs order being made against them in those court proceedings. 

Therefore, it is essential to have a broad understanding of the types of NCDR approaches available. These are as follows: 

  1. Mediation: Family mediation is the most well-known NCDR approach. During family mediation, a trained mediator will facilitate direct negotiations and discussions between parties to try and reach an agreement. Family mediation is often a cost-effective way for families to resolve issues and government voucher funding can be applied for when issues relate to children and for some, legal aid remains available for family mediation.
  2. Collaborative law: Collaborative law is another way that families can work together to resolve disputes. Here the parties are each separately legally represented but bound by an agreement to conduct negotiations collaboratively (often through a series of joint meetings). During these meetings the family can be supported by other experts (such as accountants, family consultants or financial advisors) to provide a multi-disciplinary approach. If the negotiations are unsuccessful and the parties decide to use the court process, then the parties are required to instruct new solicitors as their collaborative lawyers are prevented from continuing to represent them. This can add to overall legal costs.
  3. Early mutual evaluation of a private financial dispute resolution: Some families working together, even with their own representation, is not enough to secure an agreement. They may also need the support of an experienced neutral legal advisor, who can provide an indication of the form of the settlement to help with the negotiations. This indication can be provided on paper or in person.
  4. Parenting coordination: In disputes about arrangements for children, some parents could consider parenting coordination. This is a child-focussed negotiation approach combining skills of mediation, parenting training and effective communication. Usually, the parenting coordinator will be legally and/or psychologically trained so that they can provide specialist support to help parents together and lessen conflict.
  5. Arbitration: Not all disputes can be resolved sufficiently by agreement and joint negotiation. Where the parties have reached an impasse, or where families would prefer a decision to be made for them, arbitration may be a better approach. An arbitrator is a jointly instructed lawyer, who is empowered to make a binding decision in the family dispute. Arbitration ensures finality, which usually results in a conclusion to the proceedings much quicker than any other route. 

Selecting the right NCDR approach depends on each individual case and on the family’s specific circumstances and needs.  The level of cooperation between the family is an important consideration. One of the key benefits to NCDR approaches is that these processes are not necessarily stand alone, and it may be possible to use one or more either alongside or within the traditional court process if necessary.  NCDR can ensure prompt and private resolution to family disputes and limit both the financial and emotional toll that relationship breakdown takes on families.

Should you need advice about NCDR or any of our other services, please contact a member of our experienced family law team. Call 033 3344 9600 or email [email protected].

Author: Noelle Heath, family law.