Non-Court Dispute Resolution (NCDR) in Family Law Cases

Non court dispute resolution options in family law explained

NCDR refers to methods used to resolve family law disputes outside of the court arena. NCDR offers a less combative, often more cost-effective and emotionally manageable way for parties to reach agreement and resolve matters. These alternatives can be a better way of dealing with matters such as divorce, financial settlements, and child arrangements.

Why NCDR is the obvious choice

Family law disputes often involve complex emotional, personal, and financial issues. Court proceedings are adversarial in nature, which can make conflict worse, cause prolonged stress and anxiety, and lead to high legal fees. NCDR reduces these risks by preserving relationships, particularly important where children are involved and enabling flexible, tailor-made solutions.

What are the different types of NCDR in family law?

1. Solicitor negotiation

   Negotiation through solicitors is often the first step in trying to resolve disputes. If a settlement is reached, solicitors can formalise it into a consent order, making it legally binding upon approval by a judge.

2. Mediation

   A flexible, voluntary, and confidential process where a neutral mediator helps parties negotiate a settlement. Agreements reached are not automatically binding but can be formalised by solicitors.

   1. Before mediation begins, parties must usually attend a Mediation Information Assessment Meeting (MIAM) to check suitability.
   2. Exemptions may apply where there has been domestic abuse or child protection concerns.

3. Collaborative law

   Each party instructs a specially trained lawyer to resolve their issues in a forum outside of court, often by participating in a series of round table meetings to resolve issues amicably. If this is unsuccessful, both parties must appoint new legal representatives under collaborative law.

4. Arbitration

   A private process where a neutral third party, known as an arbitrator, is appointed to decide on matters arising from the breakdown of a marriage or civil partnership, and in some cases, child arrangements.

Unlike court proceedings, arbitration is private, and the arbitrator’s decision is legally binding. The nature of arbitration is more adversarial in that both parties may be expected to give evidence on issues and may be cross-examined by the other’s legal representative.

After hearing the parties’ evidence and from their legal representatives, the arbitrator will make an ‘award’ determining matters. The process is voluntary, and both parties must agree to sign up to arbitration and will be asked to sign the terms and conditions which then bind them before the arbitration takes place.

Read more in our ADR guide here.

1. Early neutral evaluation (ENE)

   An independent evaluator gives a non-binding indication of the likely court outcome, helping parties focus on realistic settlement discussions and aims to encourage constructive discussions which then lead to an early settlement.

2. Private financial dispute resolution appointments (pFDRs)

   One of the most utilised forms of NCDR is PFDRs, the mirror process of an in-court FDR which is typically the second hearing in financial remedy court proceedings.

The purpose of an pFDR is for the Judge to provide an indicative view on likely outcome at final hearing if matters proceed further without resolution. The private FDR Judge cannot impose an order on the parties; the parties must reach an agreement.

This helps the parties to negotiate within a parameter for settlement, knowing what the court could order at a final hearing and what they could incur in terms of further legal costs. If an agreement is reached, a consent order can be drawn up. This hearing is ‘without prejudice’ meaning that any offers exchanged, including the Judge’s indications are confidential and cannot be referred to at final hearing if the case does not settle, allowing the parties to negotiate in a safe environment.

Encouragement from the courts

In England and Wales, NCDR is strongly promoted by the Family Procedure Rules. The court and parties must consider NCDR at every stage of the process. For example, mediation must generally be explored before issuing a court application, unless exemptions apply.

In AS v CS (Private FDR) [2021] EWFC 34, Mostyn J (High Court, Family Division) stated:

“Private FDRs should be encouraged. They tend to be more successful than in-court FDRs and take pressure off the over-stretched court system.”

The comment reflects the increasing pressure on family courts, where hearings can be delayed or cancelled last-minute due to judicial unavailability, which can be extremely stressful for the parties and often leaves them in a position where they have spent considerable amounts on legal fees in preparing for a hearing which is then lost.

NCDR benefits

Choosing to resolve disputes outside of court offers several clear advantages, many of which directly address the stress, cost, and delays associated with litigation, including:

• Cost-effective in most cases;
• Quicker resolutions with no court delays;
• Gives parties control over the process and outcome;
• Privacy and confidentiality;
• Flexibility in timing and approach;
• Involves the right experts for the issues at hand;
• Ensures decision-makers are fully prepared and understand the case;
• Reduces conflict.

NCDR negatives

While NCDR is highly effective in many situations, it may not suit every case due to certain factors, including:

• No guaranteed resolution;
• Private judges/evaluators/arbitrators require fees;
• Enforcement may still require court action if an order is breached (true for both court-ordered and NCDR outcomes).

Frequently asked questions

1. Is NCDR legally binding?

   Some forms of NCDR, like arbitration, result in binding decisions. Others, such as mediation or collaborative law, only become binding if the agreement is converted into a consent order approved by a judge.

2. Do I have to try mediation before going to court?

   In most cases, yes. You must attend a Mediation Information Assessment Meeting (MIAM) unless you qualify for an exemption (e.g. domestic abuse or child safeguarding concerns).

3. How long does NCDR take compared to court?

   It varies by case, but NCDR is usually significantly faster than going through court proceedings, which can take many months or even years.

4. Is NCDR cheaper than court?

   Often it can be as it avoids lengthy litigation and multiple hearings. However, there may be costs for private judges, mediators, or arbitrators.

5. What happens if NCDR doesn’t work?

   If parties can’t reach an agreement, they can still apply to court. Any discussions in NCDR (other than arbitration awards) are generally confidential and “without prejudice,” meaning they can’t be used against you in later proceedings.

If you require any further support with resolving your family law issues outside of court, our team is here to help guide you through the process with clarity, compassion and confidence.