Law Articles

Non-Court Dispute Resolution 14/05/2024

From the 29 April 2024, the Family Procedure Rules (FPR) will improve the approach to non-court dispute resolution (NCDR) in the Family Court. The Family Court deals with disputes relating to distribution of family assets on divorce and dissolution and in relation to childcare disputes arising from the breakdown of a relationship, marriage, or civil partnership.

The FPR amendments are very welcome as they encourage parties to seek an alternative out-of-court resolution, which should go a long way in unburdening the Family Court which is currently unable to provide an efficient service due to the number of applications being made. The FPR widens the definition of “non-court dispute resolution” to include mediation, arbitration, lawyer assisted mediation, early neutral evaluation, and collaborative law, although this list is not exhaustive.

If parties attend court and are unable to show that they tried to reach an out-of-court resolution either at the outset or during proceedings, the Family Court judges are far more likely to adjourn listed court hearings to “encourage” parties to try non-court resolution methods and are more likely to make costs orders in financial cases against parties who fail to do so. In cases where there has been domestic abuse, or there are safeguarding issues in relation to the children of the family, NCDR is not appropriate.

The changes to the FPR also include the need for mediators to explore all non-court dispute resolution methods at the Mediation Information Assessment Meeting (MIAM) to ensure people are fully aware of all the alternatives to court proceedings.

Below is a summary of the most common non-court disputes resolution methods:

• Mediation with a Mediator

This process involves both parties attending mediation with a trained mediator with a view to reaching agreement. The mediator is entirely independent of both parties and is simply there to guide the discussions. Mediators do not give legal advice. The discussions are without prejudice, which means they cannot be brought to the attention of the court in any subsequent court proceedings. Any agreement reached at mediation is not legally binding but may form the basis of a legally binding agreement which is drafted by the parties’ lawyers following mediation.

• Supported Mediation

Supported mediation, also known as lawyer-supported or lawyer-assisted mediation, aims to integrate the contributions of the parties’ lawyers as well as the parties themselves. Each party appoints their own lawyer to provide independent and confidential advice on the law and the implications of proposed agreements discussed with the mediator. Both parties and their lawyers attend mediation sessions together. The discussions are without prejudice, which means they cannot be brought to the attention of the court in any subsequent court proceedings. Any agreement reached is not legally binding but may form the basis of a legally binding agreement which is drafted by the parties’ lawyers at, or shortly after, mediation concludes.

• Early Neutral Evaluation

The purpose of Early Neutral Evaluation is to provide the parties with a preliminary view on their case by assessing the strengths and weaknesses of each party’s case. The parties jointly select an independent, impartial expert evaluator to provide the preliminary view. The evaluator is often a senior lawyer, barrister, judge, retired judge, or King’s Counsel (KC). The parties attend the Early Neutral Evaluation with their respective lawyers. The evaluator hears submissions from both parties and offers their considered opinion on the likely outcome if the matter was dealt with in court proceedings. This enables the parties to form a view on whether the outcome they are seeking is realistic, and the opinion can then inform future negotiations as to settlement of the case. The view of the evaluator is without prejudice, which means it cannot be brought to the attention of the court in any subsequent court proceedings. The evaluator’s view is not legally binding however, the parties may formally agree to be bound by the decision of the evaluator to avoid lengthy negotiations thereafter, or they can just use the evaluator’s opinion to guide their future negotiations and any settlement.

• Family Arbitration

In family arbitration, a specialist arbitrator (a private judge) is appointed by the parties to resolve a dispute instead of a judge within court proceedings. Family arbitration is appropriate for disputes in relation to finances following the breakdown of a relationship, marriage, or civil partnership. It can also be used in disputes relating to children in respect of how much time the children should spend with each parent, other arrangements concerning the upbringing of children (e.g. their schooling or the change of a name), moving children to live in a different part of the United Kingdom, taking them abroad temporarily (for holidays or schooling), or moving them permanently to a different country (where the proposed country is a signatory to the 1980 Hague Convention). Rules permitting the reporting of family law cases do not apply to arbitration - the entire process is fully confidential. It is a voluntary process, and parties must agree to resolve their dispute via the arbitration process. Once parties sign up to the arbitration process, they are bound to it. An arbitrator can make both interim and final decisions and their decision is binding on the parties. It can be made an order of the court and can be enforced if a party subsequently breaches it. If an arbitrator’s decision is disagreed with by either party, it can be appealed in the same as a court order can be appealed.

• Collaborative Law

Collaborative law is a legal process which involves both parties signing a contract to bind each other to work together on a settlement and agree not to take matters to court. Each party appoints their own lawyer but, instead of conducting negotiations by letter or telephone, the parties have several meetings together with their respective lawyers (called a 4-way meeting) with a view to reaching an agreement. The process is not driven by a timetable imposed by the court and is built around the parties’ individual timetable. Once agreement is reached, the parties’ lawyers draft the relevant document containing the terms of agreement, which is submitted to court for approval. The parties are not required to attend court throughout the whole process. This process is more cost effective compared to cases at court which proceed to final hearing.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.