Non Court Dispute Resolution (NCDR)

I won’t see you in court.

A guide to Non Court Dispute Resolution (NCDR)

In April 2024 the government introduced changes to the rules that govern how financial cases are resolved on divorce. These changes have placed greater emphasis on the need to give serious consideration to the resolution of disputes away from the court system. Everyone going to court on any matter must now file a form before any hearing to explain the extent to which NCDR has been used and if not why not.

In May 2024 we saw the first example of the court showing its teeth on NCDR in the case of NA v LA (2024). The judge placed a legal hold on proceedings (known as a “stay”) effectively to force the parties to engage in NCDR rather that litigate in court.

Why is the court so keen on NCDR? First, the court service is under extreme strain. It is underfunded, under resourced and is struggling to deal with cases effectively. Second, the Courts have, rightly, concluded that the best resolutions of these cases comes where separating parties can reach agreements. This reduces acrimony and saves significant amounts in legal costs which can better used to allow the couple to rebuild their lives. Third, where successful the process can be far quicker than the court based system.

So, what are the main NCDR options?

1. The Kitchen Table

This is probably the most common form of NCDR although it does not fall within the meaning of NCDR for the purpose of the court rules! This is simply where a separating couple discuss matters between themselves and find a solution that works for them. What is vitally important is that this is properly recorded within the divorce and you can read our article about the dangers of this HERE.

2. Family Mediation

Family Mediation involves a separating couple meeting together with a trained neutral third party (the mediator) who helps them find solutions to their issues whether these are financial disputes or problems regarding arrangements for their children. Lawyers do not generally attend these kinds of mediation. The mediator is not there to make decisions nor to try to talk about reconciliation. The mediators role is to help with the discussion. A mediator will normally prepare outcome documents where a mediation is successful and these can be used to help lawyers to prepare papers to record the settlement formally.

All discussions in mediation are kept private from the courts.

3. Hybrid Mediation

This is similar to family mediation in that the Mediator is there to help the parties to arrive at a solution. Here, however, the couple will generally be in separate rooms often with their lawyers present. The Mediator moves between the rooms and will only share information between the rooms that has been agreed. Hybrid Mediation tend to take place on one day and for several hours. Family mediation involves more but shorter meetings.

4. Adjudication/Private FDR/Early Neutral Evaluation

These 3 processes are very similar. Adjudication tends to be a catch all phrase for both pFDRs ( Private Financial Dispute Resolution) and ENE (Early Neutral Evaluation). pFDRs tend to take place once court proceedings have begun while ENE takes place before the start of proceedings. In either event the couple agree to appoint an adjudicator or pFDR “judge”. This will often be a retired judge or an experienced family lawyer. The couple and their legal teams then meet an agreed location. This can be a neutral suite of business rooms, Barrister chambers or similar. The legal teams will often have some initial discussions to see if agreement ca be reached.

If no agreement can be reached swiftly the Judge/adjudicator will hear what each of the legal teams have to say about the case and their vision of the outcome. The Judge will then give an indication on how they feel the matter should be determined and what outcome might occur were the case to go to court. The couple and their legal teams then re-engage in discussions having heard the adjudication.

This process replicates the Courts very effective Financial Dispute Resolution (FDR) hearing.

5. Arbitration

This involves the privatisation of the financial dispute process by appointing a private arbitrator to decide instead of dealing with this through the court system. This is quicker than the court based process but does not always cost less.

NCDR has always been a strong option but in many cases is now a “no -brainer”. Norton Peskett’s family team will talk to about NCDR wherever it may be suitable or helpful. We can also offer mediation and hybrid mediation through our dedicated service, East Mediation HERE