Earlier this year, there were changes to the Family Procedure Rules aimed at resolving family law arrangements outside of Family Court through the use non-court dispute resolution (NCDR) methods, including Mediation, Arbitration, evaluation by a neutral third party (such as Private Financial Dispute Resolution) and Collaborative Law.
In practical terms, this means that if you wish to go to court to decide family matters, such as child arrangements or the division of finances, you need to use a form of NCDR to reach an agreement before making a court application or be prepared to explain to the court why you are not engaging in some form of NCDR. We look at some of these different forms of NCDR and how they work.
Mediation
Mediation involves you attending a meeting(s) with your ex-partner and trained independent mediator, who you pay for their time. The mediator will help facilitate discussion and communication between you both regarding issues such as child arrangements and/or the division of finances, with the aim of reaching an agreement. An advantage of mediation is that the discussions and agreements remain in your control, rather than being decided by a Judge or the court. In situations where face-to-face communications are difficult, you can each remain in separate rooms and the mediator ‘shuttles’ between you.
The mediator will remain neutral and will not provide either of you with legal advice, so you should still seek advice from your solicitor. The mediator will record any agreements so that a solicitor can draft the agreed terms into a legally binding document to be submitted to the court. Mediation is often more cost efficient and quicker than court proceedings.
Arbitration
Arbitration is an alternative to applying for a decision from the court and involves a referral of your case to a trained arbitrator who is legally qualified and has experience in family law, who you will pay privately. The arbitrator will hear from your respective solicitors and will examine the issues. After considering the facts and requirements of all parties the arbitrator will issue a decision that is legally binding on both of you which can be enforced through the courts. You will have the choice of meeting face to face or through writing only, and whether to use the arbitrator for the whole process or just the parts you need assistance with. An arbitrator can usually issue a decision more quickly than a court.
Private Financial Dispute Resolution (FDR)
Private FDR is when the parties step out of the court system and engage a privately paid-for evaluator (usually a barrister or retired Judge), who will provide an evaluation of the likely outcome of the financial matters. The evaluator will read the case papers, listen to the representations of both sides’ barristers, and then provide an ‘indication’ as to the overall settlement. You will not be required to speak or to give any evidence, save for through your solicitors. Unlike arbitration, the evaluator’s indication is not binding and is only intended to be an aid to settlement.
People who are already in the court process can opt for a Private FDR instead of a court-based FDR. Those who have not started court proceedings can also agree to attend a Private FDR once they have exchanged financial disclosure and, if they do not settle at the Private FDR, use the arbitration process to go straight to a final hearing without having to go through the full court process. A Private FDR is usually quicker than going to court as you do not have to wait for court availability.
Collaborative Law
Under the collaborative process, each person appoints their own collaboratively trained solicitor and you and your legal representatives all meet together to work things out face to face. Both of you will have your solicitor by your side throughout the process and so you will have their support and legal advice as you go. If you wish, you can also involve other parties and seek their advice such as an independent financial adviser, an accountant, or a child specialist. All these professionals will collectively make up your collaborative team.
You and your team sign an agreement at the outset that commits you to trying to resolve the issues without going to court and prevents them from representing you in court if the collaborative process breaks down. This means that everyone is absolutely committed to finding the best solutions by agreement, rather than through court proceedings.
How we can help
Our Divorce & Family Law team are highly experienced in conducting solicitor-led negotiations to reach an agreement and we also have members who are trained in collaborative law. If you decide to proceed with an Arbitration, Mediation or Private FDR, we ae experienced in all form of NCDR can support and advise you, whilst working alongside the other professionals involved
If you would like any advice on alternatives to court proceedings, or any area of Family Law, then please contact our Divorce & Family team on 0118 975 6622. We offer a fixed fee appointment for £100.00 +VAT where one of our solicitors would be happy to discuss the above, or any other legal matters.