NCDR refers to non court dispute resolution. It encompasses a range of practices which are designed to resolve matters on the breakdown of a marriage or civil partnership, without the judge forcing a final decision on the parties.
I don’t really have to think about NCDR, do I?
Since April 2024 the courts have had much stronger powers when considering how to proceed with a dispute regarding finances. The parties should provide a form “FM 5” at the initial court hearing, which explains whether the parties have dealt with some form of NCDR, why court involvement is needed if they have, or why it is not the right way forward. If the judge decides that NCDR should be used, they can postpone the court case to “judicially encourage” the parties to attend NCDR. If one party refuses to engage with NCDR, the judge can order that they pay the other party’s costs. This can be very expensive. NCDR should therefore be carefully considered before starting financial court proceedings arising from the breakdown of a marriage or civil partnership. Therefore, you must seriously consider using NCDR before starting court proceedings relating to financial issues on divorce or dissolution of a civil partnership.
So, what are my NCDR options?
NCDR covers a range of processes, from those where people agree face to face without any legal advice from the person running the process, to those where a binding decision is made for you. A good lawyer will be able to guide you through the options to help you to choose the right process for you. The parties can agree directly, or through negotiation by their solicitors, but there are more bespoke options available. Whatever process is used, once a decision is reached, your solicitors can convert this into a binding agreement to be approved by the court on-line (without you meeting the judge).
- Collaborative law involves both parties instructing a collaboratively trained lawyer to represent them in the process. Matters are dealt with by way of meetings which the parties and their lawyers all attend to discuss the disclosure required and the options available. The parties and their lawyers all work together to find the right solution for the whole family.
- Mediation involves a trained mediator (who might also work as a solicitor for other clients) guiding your conversation with your ex-partner to help you agree on the best arrangements for the future. The mediator does not provide the parties with legal advice. You can attend with your lawyers to obtain legal advice through the process. You can also attend without your lawyers (and your lawyers could advise you in the background). It can be face-to-face or online and you can be in the same physical or virtual room as your ex-partner, or you can sit in separate areas and your mediator would travel between you.
- Private FDR or Early Neutral Evaluation can be used on its own or within mediation or arbitration. The parties provide disclosure of their respective financial positions and, once that has been exchanged, offers are made by the parties to each other explaining their view as to the correct financial outcome. An experienced solicitor or barrister is then paid to consider the position and offers made. They provide a neutral opinion on any legal areas of dispute and what they believe a judge would order at a final hearing. The parties’ lawyers use that opinion to negotiate on the day – any further issues can be put before the person providing the opinion on the day. This follows the format of one of the court hearings attended before a final hearing and the parties will have to go through this process if they start contested court proceedings in any event. The parties are generally represented by barristers, or solicitors. This form of NCDR can be expensive, but it is generally very effective. The parties have the benefit of their own lawyer’s advice and the opinion of an impartial legal expert. The opinion is not binding but it is usually very persuasive.
- Arbitration requires arbitrators who are experienced and highly trained lawyers and have the authority to make decisions relating to children or finances on the breakdown of a marriage/civil partnership. Their decisions are as binding as those of a district judge in court. However, the process is generally much quicker than court proceedings. Arbitration can follow the traditional court model leading to the parties answering questions in the witness box, but the arbitrator can also reach a decision based on the paperwork only, or by listening to the points made by the parties lawyers. It can encompass a partial agreement reached between the parties. For example, they have agreed how to divide the house but not the pensions. The arbitrator can direct that full disclosure is given as part of the process.
So why don’t more people start with NCDR?
There are numerous reasons why some people don’t see an NCDR as the first step in resolving financial issues on relationship breakdown.
- “I want my day in court.” The court system is facing huge delays. It can be a blunt instrument to try and resolve matters and, particularly where children are involved, can cause damage to the parties’ relationship which can affect their ability to co-parent their children in the long term. If the opportunity to explain themselves in the witness box is important to the parties, arbitration might be the way forward as explained below.
- “My ex-partner simply will not reach agreement without a judge’s intervention.” It is surprising how many seemingly impossible cases are settled through, for example, a private FDR or mediation. With the right representation and a strong indication in private FDR or Early Neutral Evaluation, many agreements are reached. If an agreement is still not possible despite this help, it will be far easier to explain your position regarding NCDR within the court process if this has been suggested or attempted first.
- “I need full disclosure of my ex-partner’s financial positions before I can negotiate with them”. This is not a valid reason not to try NCDR because the right NCDR process can encourage or ensure that that disclosure is provided within the process.
- “My ex-partner has subjected me to abuse or coercive control”. In this scenario, the use of NCDR needs to be carefully considered to ensure that those engaged in the process are safe. A good lawyer will be able to talk you through the suitability or otherwise of the NCDR options.
But are judges really enforcing this?
The short answer is that judges are increasingly turning to NCDR as a way of resolving these types of disputes. In the court case of NA v LA [2024] EWFC 113, the judge indicated that disclosure of the parties’ finances could take place in NCDR (and enforced within arbitration, if needed). The judge ordered that the court case be postponed, and the parties had to explain what steps towards NCDR were taken, moving forwards. Both parties had paid lawyers to prepare for and attend that court hearing – it was an expensive way of being reminded of their duty to make a serious effort to resolve their differences before starting court proceedings. The judge highlighted that NCDR “…would be to their emotional and financial benefit as well as to the benefit of their children.”
At Birketts our Family Team includes an arbitrator, mediators and collaborative lawyers. We are also able to offer private FDR’s and Early Neutral Evaluations. All of our family lawyers are well versed and experienced in the use of NCDR and can take you through your options to ensure that the best approach is adopted in your case.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.