NCDR stands for non-court dispute resolution and the definition has changed in recent months due to the amended Family Procedure Rules. You may be familiar with mediation as a form of NCDR but there are also other ways to try and resolve a dispute without entering the court arena.
The court wants to encourage more people to engage with NCDR to lessen the strain on the family courts but also to promote an amicable and less adversarial way for parents or couples to deal with their disputes. This article will explore the different kinds of NCDR, and which options may work best for you.
Mediation
Since 2011, it has been mandatory for you to attend a mediation information and assessment meeting (MIAM) before making a court application, unless an exemption applies. A mediator acts independently to try and help you and your ex-partner reach a resolution. You will usually have the initial session alone with the mediator and then further sessions with your ex-partner in attendance. Some mediators offer remote sessions if this is easier for you.
It is important to note that any agreement reached in mediation is not binding so whilst it can be useful in financial remedy cases, you will still need to seek the assistance of a solicitor to draw up that agreement into a binding court order.
Arbitration
The arbitration process is governed by the Arbitration Act 1996 and can offer a more binding solution. Arbitration can also offer flexibility as you can choose the arbitrator, where the meetings will take place, and have your legal representative present. By choosing the arbitrator, you are also ensuring that person deals with all meetings whereas it can be rare for the same judge to deal with all hearings in court proceedings.
From the outset, you will be asked to complete a form confirming that you agree to be bound by the decision of the arbitrator and any directions they give. At the end of the process, the arbitrator will provide the ‘award’ in writing as well as the reasons for reaching their decision. You can then apply to the court for the terms of the ‘award’ to be reflected in a court order.
Evaluation by a neutral third party
The best example of this type of NCDR would be a Private Financial Dispute Resolution hearing (FDR). In the court arena, an FDR is usually the second hearing that takes place, which for some couples, could be a year after they make their application to the court.
Like arbitration, you and your ex-partner would choose a specialist to act as a private FDR judge. That person could be a retired judge or even a solicitor or barrister. The FDR would then take place at an agreed location on a date chosen by you and your ex-partner.
Private FDR’s can be very advantageous as the specialist can spend time properly looking at the facts of your case. Whilst it may be more costly than the standard court FDR, the dispute could be dealt with far quicker, which saves money in the longer term.
If an agreement is reached, this is drafted into an order and sent to the court for approval.
Collaborative Law
Under this process, you and your ex-partner would each instruct a collaboratively trained lawyer to represent you. After your own initial meetings with your representatives, a face-to-face meeting will be arranged, to be attended by you, your ex-partner, and your respective lawyers.
At this first meeting, you would both be asked to sign an agreement to confirm you are committed to reaching an agreement without issuing court proceedings. You can then move onto discussing your objectives and how to resolve the dispute.
You are likely to have multiple meetings and you may need to involve specialists such as a financial advisor who is also collaboratively trained.
Once an agreement is reached, your lawyers will put it into effect, obtaining a court order if needed.
The newly widened definition of NCDR means all the different options are to be considered before issuing court proceedings. Prior to the changes, a mediator only needed to consider if mediation was suitable but now consideration will be given to all forms of NCDR.
At E J Coombs, we are committed to a non-confrontational approach to matters, and we are happy to discuss the different forms of NCDR that are available to you. Get in touch now to arrange an initial appointment.
