Non-Court Dispute Resolution

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Non-court dispute resolution (NCDR) refers to any method of resolving a family law dispute –  whether relating to finances, children, or other matters – without going to court. The main methods are negotiation, mediation, early neutral evaluation, private Financial Dispute Resolution (FDR), arbitration, and collaborative law. From April 2024, the Family Procedure Rules were strengthened to actively encourage NCDR, and parties who refuse to engage without good reason can face cost sanctions. NCDR is typically faster, cheaper, more private, and less adversarial than court proceedings, and many family law cases are capable of resolution without a judge making a final decision.

Before issuing most family court proceedings, parties are required to attend a Mediation Information and Assessment Meeting (MIAM) with a qualified mediator, who will consider whether the dispute is suitable for mediation or another form of NCDR. There are some exemptions – for example, in cases involving domestic abuse or where the matter is urgent. From April 2024, the court also has the power to adjourn proceedings at any stage to allow NCDR to take place and can impose cost sanctions on parties who refuse to engage without a good reason. You are not required to reach an agreement through NCDR, but you are expected to engage with it in good faith.

Mediation is a non-binding process: a qualified mediator helps the parties to reach a voluntary agreement but cannot impose a decision on them. If mediation is successful, the agreement is converted into a court order. Arbitration is a binding process: the parties appoint an arbitrator who, after hearing submissions from both sides, issues an award that is final and binding in the same way as a court order (and will be converted into one). Mediation is generally more suited to cases where the parties are willing to negotiate and want to retain control of the outcome. Arbitration is more suited to cases where the parties need a definitive decision but want to avoid the delays, cost, and publicity of a court hearing.

A private Financial Dispute Resolution (FDR) appointment is a private version of the court’s FDR process. The parties appoint a senior barrister or retired High Court Judge as a neutral evaluator, who gives a non-binding indication of the likely outcome if the case were to proceed to a final hearing. The parties can choose the evaluator, fix a date that suits them, and ensure complete confidentiality. Unlike a court FDR, which may involve significant waiting time and takes place in a court building, a private FDR can be arranged quickly, at the parties’ convenience and held at a venue of the parties’ choosing. It is a particularly effective option for high-net-worth clients who want a judicial steer without the delays and publicity of the court system.

Yes. Arbitration is an effective method of resolving financial matters but also in relation to disputes relating to children or any wider family dispute. Arbitration can be particularly effective in dealing with narrow and specific disputes – for example, a dispute about where a child should go to school, or whether a child can be taken abroad – as well as broader financial remedy proceedings. We can advise you on suitable arbitrators depending on the circumstances of your case.

NCDR requires both parties to engage in the process. However, the court now has powers to sanction those who do not engage in NCDR without a very good reason. If a party has behaved unreasonably and failed to engage in NCDR, they may find that the court makes orders requiring them to pay the other party’s legal costs. We will advise you at the outset on the implications of any decision not to engage with NCDR and on the steps you can take if the other party is refusing to participate.

Yes. We can arrange for you to be situated in separate rooms and for negotiations to take place between the lawyers only, with no need for you to come face to face with your ex-partner. This is sometimes called ‘shuttle mediation’. It is also possible to conduct mediation remotely using video conferencing, which can be particularly useful where the parties live in different locations or where face-to-face meetings would cause distress.

Yes, in many cases. Although NCDR processes are designed to be less adversarial than court proceedings, it is advisable to have independent legal advice throughout. A mediator cannot give you legal advice – their role is to facilitate a discussion, not to represent your interests. It is also essential to take legal advice before signing any agreement reached through mediation or negotiation. Without proper legal advice, you may overlook important issues – for example, the treatment of pension schemes, or the need to dismiss future financial claims by obtaining a court order. We will support and advise you throughout whichever NCDR process you choose.