When family relationships break down, resolving disputes through the courts is not always the best option and it is no longer the only option.
Some families, following divorce or relationship breakdown, may be able to reach agreements between themselves, ideally while taking advice from expert family law solicitors to ensure they reach a fair outcome.
But when direct discussions is not enough, rather than going straight to court, now Non-Court Dispute Resolution (NCDR) approaches are available to help separating families reach agreements in more constructive, flexible, and cost-effective ways.
Our experienced family law team can guide you through the different forms of NCDR and help you choose the most appropriate route or routes for you.
What is Non-Court Dispute Resolution?
Non-Court Dispute Resolution (NCDR) refers to the methods of resolving family law issues without asking a judge to decide the outcome in court proceedings.
NCDR can be used to address:
- financial arrangements
- children’s and family arrangements
- property ownership disputes
- practical issues arising from relationship breakdown.
In many cases, NCDR can help families resolve matters more quickly, privately, and amicably than traditional court proceedings. NCDR approaches include:
- family mediation
- joint advice (Resolution Together or one couple-one lawyer advice services)
- collaborative law
- arbitration
- neutral evaluations, such as Early Neutral Evaluation (ENE) and private Financial Dispute Resolution (private FDRs).
NCDR approaches can be standalone or used in combination, depending on each family’s particular needs and circumstances.
Family mediation
What is family mediation?
Family mediation is a voluntary and confidential process where a neutral and trained mediator helps separating couples discuss and resolve issues together.
Mediation can be useful for families who want to deal with:
- financial settlements – both in the interim and long term
- arrangements for children and co-parenting
- other practical matters following separation.
The focus is on finding practical solutions for the future rather than revisiting past disputes.
How does family mediation work?
Before family mediation can start, the mediator must conduct an individual meeting with each potential participant to assess whether family mediation is suitable. This meeting is called a Mediation Information and Assessment Meeting or MIAM.
Provided family mediation is suitable, and all participants agree to proceed, the mediator will then host joint meetings with the participants to discuss issues, manage disclosure and try to reach a consensus.
Family mediation is known as a ‘without prejudice process’ which means that if a full consensus is not reached, discussions from the sessions cannot be referred to in court – although any financial information shared can be used.
Agreed proposals reached in family mediation are not automatically legally binding. Financial proposals should be formalised into a legally binding court order (a consent order) and children’s proposals can be recorded in a parenting plan or a court order.
The mediator can provide legal information, but does not give legal advice. It is important to take independent legal advice alongside the family mediation process.
Is family mediation right for me?
Family mediation can work well for many families, including those with high levels of conflict. It may help improve communication and reduce future disputes.
However, family mediation may not be suitable where there is:
- domestic abuse
- coercive or controlling behaviour
- a significant power imbalance between participants.
The mediator should consider possible safeguarding measures, such as separate rooms (shuttle mediation) or solicitor-accompanied mediation, to determine whether family mediation can work.
Joint legal advice (one couple, one lawyer/Resolution Together)
What is joint advice?
Joint legal advice or Resolution Together is a process enabling a separating couple to receive tailored legal advice from a single, neutral legal adviser.
How does joint advice/Resolution Together work?
Joint advice begins with individual assessment meetings between the legal adviser and each participant to determine whether a joint process is suitable.
Provided there are no issues of suitability, the participants will attend meetings with the legal adviser together, who will provide specific legal advice and guidance to them both so they can reach an agreement.
The joint process can be used to discuss children’s arrangements and financial arrangements.
Once a consensus is reached, the legal adviser will prepare the draft legal paperwork (a draft consent order or parenting plan) and help the couple to get it approved by the court.
Is joint advice suitable for me?
The joint process is best suited for families who would like to reach amicable agreements together but would still like to have legal advice. The process can save time and legal costs.
It is not suitable for circumstances where there has been domestic abuse or controlling and coercive behaviour. Both participants should feel comfortable negotiating on a level playing field.
Collaborative law
What is collaborative law?
Collaborative law is a process in which a separating couple each instructs a specially trained solicitor, who will work together to help the family resolve issues. Everyone commits to negotiating together in joint meetings to reach a settlement and, crucially, to avoid going to court.
How does collaborative law work?
At the outset, both parties and their legal advisers sign a participation agreement committing not to issue court proceedings during the collaborative process.
After signing the agreement, a series of four-way meetings will be held. During those meetings, financial information and advice will be shared. Other professionals, such as financial advisers or family consultants, can be instructed to join the discussions and help the family to reach a resolution.
Once an agreement is reached, the two legal advisers will draft the legal paperwork together.
Under the terms of the participation agreement, if court proceedings are started, the parties are required to instruct new solicitors. This means that all four people share an incentive to avoid court.
Is collaborative law suitable for my situation?
Collaborative law can be particularly effective where parties want to maintain a constructive relationship, especially when children are involved.
It may be less suitable where:
- trust has completely broken down
- the separation is highly acrimonious
- there has been domestic abuse.
Family arbitration
What is family arbitration?
Family arbitration is a process where a qualified arbitrator acts as a private judge and makes a binding decision on disputed issues.
Arbitration can be used for financial disputes or certain children-related matters.
It is often quicker and a more convenient alternative to court proceedings.
How does Family Arbitration work?
The arbitration process is tailored to each family’s specific needs. The parties jointly appoint an arbitrator, who may be a specialist solicitor, barrister, or retired judge.
With support from their lawyers, the parties agree how the arbitration will proceed, including:
- which issues will be decided
• what evidence will be provided
• whether hearings are needed
• the timetable for the process.
Regardless of the approach, the final decision of the arbitrator (known as an ‘Award’ in financial cases or a ‘determination’ in children’s cases) is a binding outcome. The Award or determination must be turned into a court order with the help of lawyers and sent to the court for approval.
What are the benefits of Family arbitration?
Arbitration offers several advantages, including:
- greater privacy and confidentiality
- flexibility around timescales and procedure
- reaching an outcome quicker
- the ability to appoint a specialist decision-maker.
Arbitration can also be used alongside Family Mediation, resolution together or collaborative law to resolve specific outstanding issues.
Neutral evaluations
What are neutral evaluations?
Obtaining a neutral evaluation is an effective tool that helps separating families bridge impasses in their negotiations.
Neutral Evaluations tend to be undertaken in two ways:
- Early Neutral Evaluation (ENE)
- private Financial Dispute Resolution Hearings (private FDRs)
In each form a neutral evaluator (typically an experienced solicitor, barrister, or retired judge) will provide their view on the likely court outcome, so the parties can negotiate an agreement together.
How do ENE and private FDRs work?
When using ENE or a private FDR, the parties pay for a legal specialist to hear or read their submissions (each views) and consider the evidence before providing a non-binding indication.
An Early Neutral Evaluation (ENE) can be undertaken on paper by the parties or their lawyer providing a summary of each party’s position and the evaluator provides their assessment in writing.
A private FDR is an in person financial negotiation, similar to the second stage of the financial court process. The parties’ legal advisers will make representations orally and through written position statements and the private FDR evaluator will provide an indication (or several during the course of the day) to enable negotiation.
The evaluator’s opinion (whether in an ENE or private FDRs) does not become a binding decision but can be very effective in encouraging parties to reach a legally-informed resolution.
Are ENE and private FDRs right for me?
ENE and private FDRs can be particularly useful when:
- negotiations have reached a deadlock
- parties want an expert indication of likely outcomes but want to retain control of decision making
- court delays are a concern
- privacy and flexibility are important
They can also complement Family Mediation, Resolution Together, solicitor negotiations, or Collaborative Law.
The court process and NCDR
If you do decide or are advised to attend court, it does not mean using some form of NCDR is off the table.
The court requires everyone to have considered NCDR before making a court application and during the court process.
Before applying to court, unless an exemption applies, an applicant must attend a Mediation Information and Assessment Meeting (MIAM).
Sometimes it may be possible, after the start of a court process, to move into an NCDR arena: for example, to solicitor-led negotiations, to a private FDR or to Family Arbitration (especially if there are delays in the court process).
NCDR approaches complement the court process and can work in combination with it.
Why choose Tees for family law advice?
Our specialist family law team provides practical, compassionate advice tailored to your situation.
We can help you to:
- understand the different forms of NCDR
- choose the most suitable approach
- protect your legal position throughout negotiations
- formalise agreements where appropriate
- resolve disputes as efficiently and constructively as possible
Our solicitors are experienced in supporting clients through complex family matters while prioritising positive long-term outcomes.
Speak to our family law team
If you are separating and would like advice about Family Mediation, Joint advice, Collaborative Law, Family Arbitration, or other forms of NCDR, contact Tees Law’s family law team today to discuss how we can help.
