What is Non-Court Dispute Resolution

Sometimes referred to as Alternate Dispute Resolution (ADR), Non-Court Dispute Resolution (NCDR) are a range of methods to resolve disputes away from Court. In my blog earlier this month (which can be found here), I wrote about the importance of NCDR, and how efforts to resolve mattes away from Court is viewed by the Court itself.

There are many variations of NCDR, which can adapt to the circumstances of a case, and the costs available. NCDR is encouraged to keep matters out of Court, and reduce the burden on an already over-stretched Court system.

A selection of NCDR are as follows:-

1. Voluntary disclosure through solicitors- if the dispute relates to the division of finances on a marriage breakdown, it is vital that both parties provide full and frank financial disclosure. This is usually contained within a Form E, and whilst this form is used by the Court in finance proceedings, it is available to complete on a voluntary basis. This can then be “exchanged” (swapped) with your spouse’s lawyers, and assuming all information is available, negotiations can then take place regarding settlement.
2. Negotiations- these can be via solicitors, a third party, in writing, over the telephone, or at a round-table meeting. It is usually encouraged that settlement proposals are put in writing, so everyone can be clear on the terms being negotiated.
3. Mediation- this has evolved over the years to include shuttle mediation, which doesn’t require people to be in the same room. Mediation can take place remotely (i.e. via Zoom or Teams). Parties work with a trained, neutral, Mediator over a series of meetings, to discuss the dispute and try and find an agreeable way forward.
4. Collaborative Law- this is a process with Resolution trained lawyers, focused on reaching an agreement. If that process breaks down, those lawyers can not act for you within any future dispute, and that is seen as an encouragement to resolve matters, rather than starting afresh with a new legal team.
5. Early Neutral Evaluation - this is a flexible, confidential, impartial opinion on key issues within a case. For example, if there is conflict over how an asset should be treated, an opinion can be sought from an independent person (usually a barrister or solicitor) as to how it should be treated. This often helps parties to re-enter negotiations based on the neutral opinion.
6. Private FDR (outside Court proceedings)- The Financial Dispute Resolution (FDR) Hearing is usually the second hearing within financial remedy proceedings. The process is designed to help parties reach an agreement, with the assistance of a Judge. It is similar to a Judge lead mediation, as the Judge will give an indication of how they would resolve the case if they were the trial Judge. A Private FDR takes place away from Court, usually with a specialist Family Barrister acting as the Judge, with the intention this helps steer the parties negotiations towards an agreement.
7. Arbitration- commonly used in commercial disputes, Arbitration can be a quicker method to resolve disputes, as you are not reliant on the Court to list a trial date. There are specially trained Arbitrators, usually Family Barristers, who act as the Judge and their decisions binding (although there are limited circumstances in which they can be challenged)

The above are examples of the main types of NCDR available, but there are others, and it is possible to combine some. Each matter is different, but the Court will always expect parties to have considered and attempted NCDR before making an application to Court.

If you have any questions regarding NCDR, or whether this is something that could be applicable in your case, please don’t hesitate to contact a member of the Family Team.