NCDR: Keeping Family Matters Out of Court

One of the first questions we are often asked by clients seeking our advice on a relationship breakdown or a dispute over child arrangements is “how can we resolve this without going to court?”

Given the ongoing cost-of-living crisis and the fact that the average cost of divorce continues to rise each year, this concern is understandable. Additionally, court fees are set to increase again in April 2025, and most solicitors are raising their rates by 5 to 10% annually.

This, combined with the strain of having to budget for two separate households post-separation, means managing the impact of a family dispute on your finances has never been more of a concern. Some couples even find themselves remaining in unhappy relationships or avoiding divorce completely as a result.

 

But is there a better way?  

 

Non-court dispute resolution (NCDR) is an umbrella term for the various ways of resolving issues around finances or children after the breakdown of a relationship without the need for contested court proceedings. At Freeths, we prioritise resolving matters without needing court proceedings whenever possible. The government has introduced requirements to explore Non-Court Dispute Resolution (NCDR) before proceeding with litigation, and these requirements may be extended further in the future.

 

 

The most common types of NCDR

 

Mediation

• A family mediator is an independent, neutral third party, trained to facilitate discussions and negotiations between the parties to help them try to reach an outcome they can both agree on.
• The mediator will have separate meetings with each party to establish whether mediation is suitable, before having a number of joint sessions with both of them to discuss and explore the situation and their options. These can be either face-to-face or online.
• When the mediation process concludes, the mediator will prepare a written summary of what has been discussed, and what has and has not been agreed.
• The mediator can give broad guidance on the law, but cannot give either party legal advice, so the parties will often each have solicitors they can consult between sessions as well.
• Some family mediators can include the parties’ solicitors in the mediation process directly (this is known as hybrid mediation).
• Where there are issues around arrangements for children, some family mediators are trained to speak to the children themselves to explore their feelings and wishes and bring those into the mediation process (this is known as child-inclusive mediation).        

Arbitration

• An arbitrator is an independent third party, jointly instructed to consider all of the issues and evidence and to make a decision on the parties’ behalf.
• In instructing an arbitrator, the parties agree in advance to abide by the arbitrator’s decision, and that it will be binding on them both and will be converted into a court order.  
• Arbitrators are specially trained and are typically retired judges, senior and experienced barristers, or solicitors.

 

Private Financial Dispute Resolution (PFDR)

• In contested court proceedings over finances, the court arranges a hearing known as a financial dispute resolution appointment (FDR), at which a judge gives an indication of the likely outcome of the case at a trial and encourages the parties to try to negotiate an agreement at court in the light of it. A PFDR does the same, outside of the court process, with a privately instructed senior family barrister who acts as the “judge”.
• If there are existing court proceedings, they can be paused to allow a PFDR to take place. However, you can also arrange a PFDR where no court proceedings have been issued.
• We do not see that many practitioners guiding their clients towards PFDRs, but it should always be considered a is a very cost-efficient way to bring matters to a conclusion.

 

Solicitor negotiation

• The parties also have the option of negotiating through their solicitors, without court proceedings being issued. This is usually done via written correspondence but can also involve the solicitors speaking directly by phone. In some cases, a roundtable discussion and negotiation involving both parties and their solicitors can be useful.

 

 

The potential benefits of NCDR

 

• Cost

If successful, each of these options typically proves to be considerably less expensive than contested court proceedings, which is often a crucial consideration.  

 

• Speed

The courts’ lack of resources and the demands on judges’ time generally make court proceedings very slow and time-consuming. It can take more than a year to progress from a court application to a court FDR, and far longer than that if no settlement is reached and a trial is required. A successful NCDR process is typically much quicker than going through the court system.  

 

• Control

In court proceedings, parties have limited say around scheduling and timetabling, and hearings are managed by very busy judges, who will typically have multiple cases to handle on the same day. As a result, they will often not have much time to familiarise themselves with each individual case. By contrast, NCDR allows parties to choose their own expert mediator, arbitrator or PFDR judge, and arrange to see them at a time and location that suits everybody. An NCDR process can be tailored to the parties’ needs in a way that court proceedings are not.      

 

• Reduction of conflict

Court proceedings are inherently adversarial, and the parties must always bear in mind that they are preparing themselves for a fully contested trial if they cannot reach a settlement. With mediation or a PFDR, in particular, the focus is very much on the parties finding a mutually acceptable outcome themselves. This approach can help to minimise acrimony between parties and contribute to them maintaining a constructive relationship afterwards., This is especially important where there are children involved.

 

 

• If you’re facing a divorce or child arrangement dispute, it’s crucial to have expert guidance to help you manage these sensitive issues effectively. Our team is here to provide clear, strategic advice to ensure you protect your interests and move forward with confidence. Contact us today to discuss how we can support you in addressing these evolving trends in family law.
• Ranked as one of the UK’s leading law firms for family law by the Legal 500 and retaining the highest rank in Chambers & Partners, Freeths’ highly experienced team provides a wide breath of services both nationally and internationally. 
• With a discrete and sensitive approach, the team offers advice in a variety of niche areas including: 

• Mediation, spearheaded by Tom Burgess
• Surrogacy and donor conception, led by Joanne Thomas and Tom Burgess
• Rural and farming assets, covered by Gemma Nicholls-Webber

For further information and advice on NCDR options for resolving family issues, contact Tom Burgess at Freeths via email at tom.burgess@freeths.co.uk or call 01865 781 235.