Alternatives to court – NCDR and the impact of the 'new' rules

When advising separating families, it's as important to think about process as it is to consider potential outcomes. The court rules were changed in April last year to encourage a greater focus on looking at alternatives to court, but for most family lawyers thinking about process has always been key.  

Anyone involved in family proceedings must now submit a form to court to inform the judge as to what steps, if any, they have taken to try to resolve their dispute outside of court. The Non-Court Dispute Resolution (NCDR) options include mediation, arbitration, collaborative law and early neutral evaluations. The wealth of choice can be reassuring but sometimes can become overwhelming  especially for those without legal support– we have created an NCDR section on our Frequently Asked Questions page to help people better understand the options and navigate their choices.  

Sometimes court is the right option – it ensures an outcome, it provides safeguarding when there are concerns around harm, and it insists on engagement (or suffer the consequences such as costs orders or decisions made without your attendance or input). However, often separating families are best served by an alternative to court. Looking for solutions outside of court can result in a more bespoke process – the court option is very much a 'one size fits all' approach whereas NCDR means greater control and autonomy for the participants and also ensures privacy – decisions made are not reported. 

The fact that separating couples are diametrically opposed as to outcome, does not rule out NCDR. As Mr Justice Miles recently said 'The purpose of mediation is to remove roadblocks to settlement... The range of options available to the parties to resolve the dispute through mediation goes beyond the binary answer a court could provide. There may be solutions other than yes or no.' Mediation (just one of the potential options) is where the decision-making remains with the participants rather than being imposed upon them, which means they can ensure that their priorities are met. When it comes to financial disputes this can mean alighting on a solution that a court might have reservations about – particularly where there is a history of disagreement – for example continuing to have financial connections eg both retaining shares in a family business. The court will still need to approve the agreement for it to be made into a binding order so it cannot be outside of the parameters of what a court would consider fair, but it can take a form that a court might not impose upon separating couples. When it comes to children, the court's powers are restricted depending on the age of children – unless there are exceptional circumstances the court will not be involved in deciding where a child who is over 16 lives or who they spend time with, whereas for many parents those children aged 16 and over still require time and attention and a degree of parental agreement.  

Mr Justice Miles was dealing with a commercial dispute and so was in a position to mandate mediation. That is not possible in the family courts. However, the new rules mean that family court judges can strongly encourage those before them to find another way – they can adjourn hearings to allow consideration of alternative means of resolution and they can make costs orders against those who have not properly engaged in finding solutions. 

We are hosting a series of breakfast events with our peers to discuss the new rules, how they have impacted on practice, and how our clients are experiencing the change in approach. Sharing experiences allows us to increase our awareness of how the rules are being applied and enforced in different courts, and how practice is developing to ensure our clients are supported through their journey whichever process they choose. Key issues in our discussion included the challenges involved in navigating NCDR where there are concerns or allegations of abuse; how to ensure that both sides are engaged in the process when there is not a court- imposed timetable to adhere to; how and when to hear the voice of the child in disputes concerning children and what combinations of NCDR options can be most effective. 

We are fortunate to have arbitrators, mediators and collaborative lawyers within our team and our innovative bespoke service Uncouple which combines various NCDR options to best effect. We have therefore welcomed this increase in awareness, understanding and use of NCDR.