How you approach resolving a dispute with your ex-partner, whether regarding finances or your children, is an important first step in your case and can set the tone moving forward.
Previously, alternative ways of resolving disputes outside of court proceedings (now defined as non-court dispute resolution or ‘NCDR’) were always available options. However, under new procedure rules that came into force last month, there is now a far greater expectation that parties should actively engage in NCDR throughout the entirety of proceedings with possible financial consequences if they do not. The court is a blunt instrument and, although in certain cases is the only viable option for a fair result to be determined, the wide range of NCDR options can lead to a far less contentious and costly conclusion than relying on lengthy court proceedings that can take a significant emotional toll on the parties involved.
Since 29 April 2024, new family procedure rules have been put in place with the aim of encouraging early resolution of private law children and financial remedy proceedings in the hope of more amicable outcomes for families and reducing the burden currently faced by the family courts.
But what does this actually mean in practice and how does it impact your case?
What is NCDR?
NCDR has been widened by the new rules to mean ‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law’. The list is deliberately unexhaustive so as to enable new NCDR methods to be included in the future.
How will these new rules affect my case?
Under the new rules, the court has the power to encourage the parties to engage in NCDR by making directions within the timetabling of your case to this effect and may even adjourn a hearing without your consent to provide you an opportunity to participate in NCDR. NCDR should be actively considered throughout proceedings and remain at the forefront of your mind.
Before each hearing, a court form will need to be filled out confirming whether or not parties have engaged in any form of NCDR. If the parties appear before the court despite having engaged in NCDR, they will be required to explain to the court why they are now seeking a court order.
Isn’t the preliminary Mediation and Information Assessment Meeting (‘MIAM’) I had to undertake in order to proceed with my court application sufficient?
Not quite… Whilst it is used as a method to assess whether a case was suitable for mediation specifically, in practice, the exemptions meant that parties often avoided attending MIAMs. The exemptions are now far narrower which means it is far harder to avoid considering whether mediation is appropriate for your case.
Under the new rules, where a party fails to attend a MIAM (barring exemptions, of course) or engage in NCDR, this will be considered a matter of conduct when determining costs orders, notably in financial remedy cases. As such, MIAMs will become a lot more difficult to avoid and express failure, without good reason, to attend a MIAM or engage in NCDR will provide good reason for the court to consider making a costs order against the party who makes no or a limited attempt at engaging in NCDR.
Under the amendments, MIAM providers will need to explain to attendees the potential benefits of NCDR and discuss the most suitable form of NCDR and how to proceed. The amendments will also provide the court the opportunity to consider whether a previous valid MIAM exemption continues to be applicable.
What are the advantages to NCDR over court?
NCDR has a reputation of being less confrontational, quicker and often more cost effective to help you resolve any issues. NCDR also allows you to have greater control over the process as opposed to having a solution imposed on you by the court.
Below are some links to alternatives to litigation and links to further information and frequently asked questions for you to consider whether one of these may be an option for you.
Our team of specialist family lawyers includes several experienced family mediators. They are able to provide substantive mediation (in relation to financial matters and/or issues relating to children) and undertake MIAMs (Mediation Information and Assessment Meetings). The team also includes a number of collaboratively trained lawyers, who can act for you as part of the collaborative law process.
further information
If you have any questions about the topic of this blog, please contact a member of our team of family and divorce lawyers.
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