To mark Resolution’s National Dispute Resolution Day on 4th April 2025, Anna Cross, Legal Director in Ellisons’ family team explains a little bit more about what NCDR means in the area of family law, raising important awareness for separating families as to how they can resolve both children and financial issues arising out of their separation.
What is it?
Non-Court Dispute Resolution (‘NCDR’) is a term used to describe the different ways of being able to resolve a family dispute without making a court application. There are lots of different options now available enabling parties to avoid the court system all together, and, in the majority of situations, NCDR should be encouraged as the way forward for family disputes to be resolved.
From 29th April 2024 there is now an obligation under the Family Procedure Rules for practitioners (subject to some exemptions including domestic abuse cases) to consider all NCDR options with their client at the outset of their case and as the case progresses. The court has the power to adjourn proceedings if they consider NCDR may be appropriate and has not yet been explored. The court also has the power to order one person pay the other’s costs in financial cases, where the court considers that a person has failed to reasonably consider NCDR prior to court proceedings being filed.
Different types of NCDR
- Arbitration
A process by which a qualified Arbitrator would determine the issues for the parties and the parties agreeing to be bound by their decision. Effectively privately paid for court proceedings. The separating couple would agree on an Arbitrator and can agree on what specific issues they would like the Arbitrator to determine. Whilst a more formal Arbitration Hearing can take place, Arbitrators are often asked to make a determination, based on a paper application. A binding decision (known as ‘an Award’) is made by the Arbitrator and this decision would need to be drawn up into an agreed order and approved by the Family Court. Family Arbitration can deal with both financial and children disputes (but there are some limits to certain types of finance and children cases that Arbitration does not extend to).
- Collaborative Law
Each person appoints their own collaboratively trained lawyer, and there would be a series of meetings together with the separating couple together with their lawyers. (roundtable meetings). During the collaborative process, there is also an opportunity, if needed, to work with other professionals, including an independent financial adviser (financial neutral), a family consultant, or an accountant, who will provide the separating couple with specialist help regarding financial matters within their specialist field. With cases concerning children – parenting, communication and emotional support can also be accessed if and when needed. All these professionals will collectively make up the ‘collaborative team’.
- Mediation (including hybrid and shuttle mediation)
A mediator (an impartial, third party) is chosen jointly to help facilitate an agreement on children and/or financial matters arising out of separation. It is a voluntary process, and any agreement reached is not binding until it is drawn up in an order and approved by the Family Court. Mediation usually takes place by way of a face-to-face meeting – the separating couple and the mediator. It can also take place ‘remotely’ – via video call, or as a ‘shuttle’ mediation – where the mediator ‘shuttles’ between two separate rooms.
- Resolution Together (‘One Couple – One Lawyer’)
This allows a separating couple to approach their divorce / separation together and the couple would jointly instruct one lawyer to assist them both. The lawyer will guide the separating couple through discussions whilst advising them jointly on any legal issues and the approach the court would take. Any agreement reached would need to be drawn up in an order so that the Family Court can make this legally binding.
- Private FDR (pFDR)
This is essentially a private court hearing for financial disputes arising from a divorce. The separating couple would agree a ‘judge’ (who is usually an experienced barrister). The ‘judge’ would usually be available for the whole day and would assist in trying to reach a resolution by giving an ‘indication’ as to how they think the court would deal with the issues. As with Arbitration, whilst the cost of a private judge can, on first glance seem high, this needs to be weighed against the cost of fully contested court proceedings and also the significant delay in the Family Court system at the moment. Private FDRs do have a very high success rate of settlement.
- Early Neutral Evaluation
This is a non-binding form of NCDR and can be used by a separating couple to get an initial indication on their dispute from an independent third party who specialises in the relevant field (e.g. children matters / financial matters). It can help to ‘focus the minds’ and assists the parties in moving forward to an early settlement. The assistance of a mediator and/or lawyers for each party is also sometimes used alongside this.
- Parenting Co-ordinators
This is a child focused method of NCDR where a Parenting Co-ordinator would support both parents, usually after a Parenting Agreement or a Court Order has been made. Parenting Co-ordinators can assist separated couples who find communication challenging, but who recognise that it is vital to explore different ways of working together. This would be an option to work through issues post order rather than returning back to court.
- Round table meetings
This is often an overlooked option and involves a meeting with the separating couple and their lawyers with the objective of reaching a mutually acceptable agreement. Quite often it helps to know why one person is taking a particular position on something and round table meetings can help to narrow the issues.
What are the benefits?
- Quicker resolution than waiting for a case to be determined by a Family Court (sometimes this can take over 2 years).
- More flexibility – separating couples can choose the mediator / arbitrator / private judge and have meetings that suit their work and family commitments.
- More flexibility in deciding what is important for the family as a whole – the separating couple can agree things which the court might not have the power to order.
- Any agreement reached can be made legally binding by the Family Court, without needing to issue a formal court application and attend court – most ‘consent’ orders are approved and made legally binding without the need to attend court at all.
- Family relations are maintained, and communication is improved which benefits the family, not only in the short term, but also in the long term.
- Less stressful and minimises conflict.
- The separating couple is in control of the outcome and can reach an agreement that they are happy with, without running the risk of a court determining their case and making an order that neither party is happy with (with the exception of arbitration).
- You can use a combination of NCDR options.
Are there any negatives?
- As with any process, NCDR can break down and the parties can feel as though they have to ‘start again’.
- Most NCDR options cannot create a ‘legally binding order’ and if the parties wanted their agreement to be legally binding (which is always advisable), it would need to be drawn up into an order by a lawyer and submitted to the court for approval – this is very common and an easy process.
- NCDR options are voluntary and depend on a commitment to trust in the process and have a genuine intention to try and reach a resolution.
- NCDR is often difficult or not advisable where there is a power imbalance in the relationship regardless of the parties’ willingness to participate. NCDR practitioners do though receive extensive training in screening and managing such issues.
- NCDR might not be suitable for cases where there is domestic abuse. As with the court process, sometimes the NCDR methods can be used by a party to attempt to control and further abuse the other person.
- Other than mediation, other forms of NCDR would be unlikely to work well without both parties being represented.
Overall, in my view, the benefits of NCDR far outweigh any potential concerns with NCDR. NCDR gives separating families choice. NCDR can be much more cost effective, efficient and flexible and can be tailored to the specific needs of the separating couple and their family. It can also ensure confidentiality, which cannot be guaranteed within court proceedings with the new rules around transparency orders.
Anna is a Legal Director in Ellisons’ Family team in Colchester. She been assisting clients and specialising in this practice area for over 18 years and has a wealth of experience in all areas of family law. Anna is a Resolution Member and a member of the Law Society’s Family Law Panel. She is also an accredited Resolution specialist in Domestic Abuse, Advanced Financial Provision and Children Law (private).
Ellisons’ Family Team are committed to helping clients resolve their family law issues in a way that offers families a better way forward. The family team has two collaboratively trained lawyers – Sally Ward and Samantha Markham and two Resolution Together trained lawyers – Sally Ward and Samantha Chase.
