Finding Peace in Family Disputes

Non-Contentious Dispute Resolution in Family Proceedings

Non-contentious dispute resolution (NCDR) refers to resolving family law disputes outside of court through cooperative methods, previously known as Alternate Dispute Resolution (ADR). In England and Wales, NCDR is encouraged to resolve children and financial issues arising from a relationship breakdown within a format that best suits the couple and their family.

NCDR supports the cooperative problem solving and aligns with the family court’s goal of reducing adversarial litigation and making the family court the last resort. NCDR offers separating couples and families a more humane and constructive way to navigate difficult transitions, although there are some circumstances where NCDR might not be appropriate such as:

• Domestic abuse and violence in the relationship
• Safeguarding concerns and harm to a child to include allegations of sexual or physical abuse.
• Significant power imbalances in some instances a disability or language barrier might make NCDR unsuitable as it prevents constructive engagement.

The types of NCDR that are usually the most effective in dealing with children and financial disputes:

Mediation

Mediation is the most widely used NCDR method. A neutral, accredited mediator helps parties communicate and reach agreement on issues such as child arrangements or property and financial settlement and is a voluntary and confidential process. While agreements reached in mediation are not legally binding, they can be made binding through a consent order which is then approved by the court. Attendance at a “Mediation Information & Assessment Meeting” (MIAM) is required before issuing most court application, unless an exemption applies such as domestic abuse and violence or urgency.

Arbitration

Family arbitration allows parties to appoint a qualified arbitrator to decide on their dispute. This method of NCDR is governed by Family Law Arbitration scheme covering both financial and some children related issues. Arbitration offers a faster more private and flexible alternative to court. The final decision (the award) is usually accepted by the courts, especially when fair and reasonable.

Private Financial Dispute Resolution

Otherwise known as private FDR’s (pFDR) is where an experienced barrister acts as a private judge to help couples resolve financial disputes outside of the court process. The pFDR evaluator gives an unbiased indication of their view of the outcome of the court proceedings based on their experience, the facts of the case and law to encourage the parties to reach a mutually agreeable settlement in a less formal, but confidential environment which is not a court building. The key advantages of a pFDR are it is:

• Quicker and more cost effective than a court-based FDR.
• The parties can choose the judge, the date and venue.
• The judge will only deal with their case and will have read the papers in the case.
• The environment is less formal anxiety, emotional strain and hostility which is often conducive to fostering more production negotiations and settlement.
• The process is confidential and so any offers made cannot be used in future court proceedings.

 Solicitor led Negotiations

Negotiation between solicitors is a common and flexible method, often used alongside other forms of NCDR. Parties exchange proposals and try to reach agreement without formal proceedings. If successful terms can be formalised into a legally binding consent order.

Final Thoughts

NCDR is generally quicker, cheaper and less stressful than court litigation and therefore supports the premise of a ‘good divorce’.

The family team at Gilson Gray are experienced in all forms of NCDR in resolving matrimonial and children disputes as well as the ‘one couple, one lawyer’ method for divorce and dissolution.

If you need advice on child contact or any other family law matters in England and Wales only, please contact Linda at Gilson Gray for a confidential discussion.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.