For a glossary of terms you might come across during this process, please click here.
Amendments to the Family Procedure Rules (“FPR”) have expanded the definition of Non-Court Dispute Resolution (“NCDR”) as “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.”
The aim is to encourage parties to resolve their issues out of court and to avoid the stress and cost that inevitably comes with protracted Court proceedings. There are of course cases that need to be managed through the Court process, for example, where there has been domestic abuse, or where one party is refusing to engage with the process, and thus NCDR would not be appropriate.
There is now an expectation from the Court that parties will actively engage in some form of NCDR, prior to making a private law application, to help resolve one or all outstanding issues. Failure to actively engage in NCDR, without good reason, could now result in a costs order being made against you.
Types of NCDR:
Mediation
Mediation is where both parties meet with a trained, independent expert (a mediator) to try to resolve the issues between them. This can include issues arising from the breakdown of a relationship, such as children or financial matters.
It may also be useful to mediate to agree the terms of a pre- or post-nuptial agreement or a cohabitation agreement. In addition, mediation may help if previously agreed arrangements need to change, for example in relation to children.
The agreement that you reach will then be converted into a Court order for you both to sign, which will then become legally binding.
At the start of most private family law applications, the parties are required to attend a Mediation Information and Assessment Meeting (“MIAM”) to discuss whether mediation would be a suitable path to follow. The amended rules have now narrowed the exemptions for attending a MIAM and the mediator is required to explore, in detail, all of the NCDR options open to the parties.
Rosalyn O’Donnell-Teelan is a highly experienced Resolution-trained mediator. If you are already in mediation, you may wish to have some advice from an independent solicitor in the background. We can also assist you with this.
Collaborative law
Collaborative law is where both parties, with their solicitors, attend a series of meetings, the aim of which is to reach an agreement.
At the beginning of the process the parties sign a document to commit to working together to avoid Court proceedings.
Rosalyn O’Donnell-Teelan and Catherine Silwal are both experienced Resolution-trained collaborative law practitioners.
Arbitration
Arbitration is where the parties agree to appoint a private arbitrator, who takes on the role of a judge, to make a decision on the issues between them, whether financial or in relation to children.
The advantage of arbitration is that it is much quicker than going to Court.
The arbitrator’s decision will be binding. Although in children matters there is the ability to have the Court review the decision of the arbitrator, the decisions are rarely overturned.
Arbitrators also undertake negotiations hearings, just as the Court does before it moves to a final hearing. The aim of both the Court negotiations hearing and the arbitration process is to help the parties reach an agreement themselves before the Court needs to impose an outcome at a final hearing.
Evaluation by a neutral third party
This method, often referred to as a private Financial Dispute Resolution hearing (an “FDR”), aims to emulate the negotiations hearing that takes place within Court proceedings. This is a hearing at which the parties are encouraged to reach an agreement or narrow the issues in dispute. The advantage is that the parties are not reliant on Court timetables, given that a private FDR can take place as soon as the private judge and parties (and their legal representatives) are available.
Similar to arbitration, the parties agree to appoint a private judge (often a senior barrister) who gives an indication of what they consider to be the likely outcome at a final hearing. Unlike arbitration, the indication is not binding. If an agreement is reached, a consent order can be prepared reflecting what is agreed and filed at Court to be approved and sealed, thereby making it a binding agreement.
Ongoing requirement to consider NCDR
Throughout the Court process, both parties are required to consider and reflect on whether their case has become suitable for some form of NCDR. This may arise in circumstances where a previously disputed issue has been resolved (for example, in relation to property valuations), thereby allowing the parties to engage on a more cooperative basis to reach an overall agreement through NCDR. It is not acceptable for the parties, once an application has been issued, to ignore the opportunities to engage in NCDR if it becomes appropriate to do so.
Following the changes to the FPR rules, the parties now have a duty to file with the Court a form (FM5), in which they each set out their views about using NCDR, 7 working days in advance of each Court hearing. Judges will be able to adjourn a hearing in order to allow the parties time to attend NCDR, if appropriate, and will even be able to impose costs orders on those that do not comply with the amended rules and refuse to engage in NCDR.
Here at Teelan & Silwal, we will consider your individual circumstances in order to advise you as to the most appropriate NCDR option for you, both at the outset and throughout your case.