Peace on earth? Non-court dispute resolution in family law

Christmas is the season of love and understanding, as Shakin’ Stevens once sang, but it can also be a time when arguments flare up, particularly if you are going through relationship breakdown or divorce.

Christmas is also an expensive time, and with the average cost of divorce rising year on year and the reality of needing to maintain two separate households after a separation, trying to limit the financial impact of the process is arguably more important than ever. That is where non-court dispute resolution (or “NCDR”) comes in.

Non-court dispute resolution (NCDR) is an umbrella term for all of the different methods a couple can use to reach agreement on issues around finances or children after the breakdown of a relationship, without the need for contested court proceedings. At Freeths, we strive to help you resolve disputes without the need for court proceedings to be issued whenever possible, and we can offer a range of NCDR options to achieve that.

The main forms of NCDR are:

• Family mediation

A family mediator is a neutral specialist who works with you across several sessions to help you to deal with the issues arising from your separation or divorce. Mediation enables you to communicate directly with each other, rather than through solicitors. Mediation is a voluntary and confidential process, which takes place in a safe, non-hostile environment. A family mediator will not impose any decision or settlement on you. Instead, their role is to facilitate a discussion between you to help you put together a jointly agreed set of proposals.

• Collaborative law (also known as collaborative practice)

Collaborative law is an alternative way of working with solicitors that is designed to promote cooperation and dialogue rather than adversarial stances. You each instruct a specially trained collaborative solicitor, and you and your solicitors all enter into a written agreement to abide by the collaborative process. This involves a series of joint, face to face meetings, which focus on identifying creative and practical solutions that work for both of you, with the help of your solicitors.

• Family arbitration

Family arbitration involves you both entering into a formal agreement to appoint an independent and impartial arbitrator to adjudicate the dispute. The arbitrator is typically a very experienced family lawyer, who listens to the arguments and evidence and then makes a formal written decision (known as an award), which determines the outcome. The award is final and binding.

• Private financial dispute resolution appointment (PFDR)

If you are in contested court proceedings over finances, the court arranges a hearing known as a financial dispute resolution appointment (FDR), at which a judge gives you an indication of the likely outcome of the case at a trial, and encourages you to try to negotiate an agreement at court in the light of it. A PFDR does the same, outside of the court process, with a privately instructed senior family barrister who acts as the “judge”.

• Solicitor-led negotiation

You also have the option of negotiating through your solicitors, without court proceedings being issued. This is usually done via written correspondence, but can also involve your solicitors speaking directly by phone. In some cases, in person roundtable discussions and negotiations involving both of you and your solicitors can be useful.

How NCDR could benefit you:

• Speed

As long as they run smoothly and you are both committed to them, NCDR processes should bring matters to an end far more quickly than contested court proceedings. The demands on court administrators’ and judges’ time are enormous, and the court system is stretched financially. It can take around a year from issuing a court application to reach a Financial Dispute Resolution appointment (the negotiation hearing at which a large proportion of cases are settled), and often closer to two years if a full trial is required.

• Control

You can choose the NCDR option that suits you, and tailor the process to your needs. You can choose your own mediator or arbitrator, and set the dates, venues and timeframes that work best for you. Most importantly, of course, the purpose of NCDR (with the exception of arbitration) is to put the outcome in your hands and help you to reach an agreement. By contrast, in court proceedings, you are at the mercy of judges’ diaries and hearings will be scheduled when the court can accommodate them, and if you do not reach a settlement during the proceedings then matters will be taken out of your control at a trial, when a judge will impose an outcome on you both.

• Conflict reduction

In mediation or the collaborative law process, the focus is very much on the parties finding a mutually acceptable settlement themselves. That can help to minimise acrimony between them and contribute to them maintaining a constructive relationship afterwards, which can be especially important where there are children involved. Arbitration, although it is a contested process, is in part designed to determine issues quickly and reduce the bitterness and acrimony that can result from long drawn out court proceedings. Court proceedings, by their nature, always involve both of you positioning yourselves to try to get the best outcome if you have to go to trial, which almost inevitably fuels animosity.

• Cost

When they are successful, NCDR approaches are almost always considerably cheaper than contested court proceedings.

For further advice on NCDR options for resolving family issues, contact Tom Burgess at Freeths via email at tom.burgess@freeths.co.uk or call 01865 781 235.