The Importance of Considering Non-Court Dispute Resolution (NCDR)

Many individuals may think going to Court is the only way they can resolve disputes concerning their children and or finances, as such, the Family Court has become increasingly overwhelmed with individuals making applications to the Court without alternatives to Court not being fully explored in the first instance.

The Family Court has always highlighted that proceedings should not be issued unless absolutely necessary. In 2014, attendance of a Mediation Information Assessment Meeting (MIAM) was made compulsory prior to any individual making an application to the Court
in Child Arrangements and Financial Remedy cases, unless a party was exempt from the requirement. However, it seems many have been simply treating their attendance at a MIAM as a tick box exercise, to ensure they can make their application to court regardless
without exploring the benefits of attending Mediation.

Changes to the rules?

The Family Procedure Rules, are a set of rules governing the procedure of family proceedings in England and Wales and an amendment came into effect on 29 April 2024, aiming to further encourage parties to engage in Non-Court Dispute Resolution (NCDR) to resolve disputes in Private Law Children and Financial Remedy proceedings.

1. The definition of Non-Court Dispute Resolution at FPR 2.3 (1) (b) has been broadened to now include methods such as mediation, arbitration and early evaluation by a neutral third party (such as a private Financial Dispute Resolution (FDR) hearing) and collaborative law.
2. Parties are obliged to consider NCDR not only before making the application but throughout proceedings, the court has a duty to consider at all stages of proceedings whether NCDR is appropriate.
3. The court will require each party to file and serve a Form ‘FM5’, at least 7 days before the hearing to set out their views on non-court dispute resolution, this includes outlining why parties are applying for a court order despite not attending NCDR or why NCDR has been unsuccessful.
4. Previously cases could be adjourned if parties agreed to consider NCDR, now the court can adjourn proceedings whether parties are in agreement or not, to allow for parties to attend a form of NCDR if the court considers that NCDR is appropriate.
5. If a party fails to attend and engage in NCDR without good reason, the court can order costs for refusal of the same.

Types of Non-Court Dispute Resolution

Mediation
The first stage would be attending a MIAM to ensure mediation is suitable, there are some exceptions to this, for example if a party is the victim of domestic abuse. A mediator is an independent, neutral third party, who will meet with both parties to help them reach an
agreement. Mediators do not give legal advice, and it is recommended parties obtain legal advice alongside the mediation process.

There will be a number of sessions together with the mediator. Any agreement made in the mediation process is not legally binding, legal advice should be sought as to converting a Memorandum of Understanding into a consent order than can be filed with the court
for approval.

MIAM providers now have a duty to inform their clients about suitable forms of NCDR to ensure parties are well informed about all the available alternatives to court proceedings.

Collaborative law
This is a four way process, where both parties instruct collaboratively trained lawyers for the purpose of informal discussions and joint meetings for the purpose of settling and reaching an agreement. From the outset the parties confirm their mutual intention of reaching a
fair settlement, and to not go to court. A court order can then be sought in the terms of the agreement reached.
Early Neutral Evaluation (usually by private Financial Dispute Resolution Hearing)
This is where both parties attend a meeting and receive a joint and neutral opinion from a family law specialist as to how their circumstances would be viewed by a court. Both parties remain represented like in the court process. Parties can use this opinion to guide their negotiations and direct discussions with a view to settlement.

Arbitration
The parties agree to submit to the binding decision of an independent family arbitrator (who is an experienced family law practitioner).The arbitrator will produce a decision after hearing from each party, they will act fairly and impartially giving parties the opportunity to put forward their views. The same person will deal with the dispute from start to finish. Parties retain their own lawyers throughout the process. The binding decision will be made into a final order of the court.
The changes mean that parties must consider a form of Non-Court Dispute Resolution before making an application to the court and parties are now more than ever encouraged to explore the possibility of resolving matters outside of the courts.

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