HomeA guide to Non-Court Dispute Resolution.Divorce & Family LawA guide to Non-Court Dispute Resolution.

A guide to Non-Court Dispute Resolution.

What is Non-Court Dispute Resolution?

Non-Court Dispute Resolution (NCDR) refers to the variety of ways people can resolve issues relating to money or arrangements for children without going to court. It can include negotiation, Early Neutral Evaluation, mediation, arbitration, and collaborative law.

Is non-court dispute resolution compulsory?

Parties are required to show that they have considered non-court dispute resolution both before commencing any court proceedings and during the proceedings. If they fail to do so, they must explain why and justify why court intervention is the only option.

Since April 2024, there is a strong expectation and encouragement for disputes to be kept out of court where possible.

Failure for a party or parties to engage in non-court dispute resolution without a good reason can result in financial penalties for those who dismiss alternatives to litigation and court.

Is mediation a form of non-court dispute resolution?

Yes, it is. Mediation is a process that helps separating or divorcing couples resolve disputes and reach agreements without going to court. A mediator is an impartial third party, who is neutral and does not take sides. Their role is to define issues, clarify positions, and encourage solutions and options. The mediator does not make decisions for the couple, nor can they give legal advice.

In many cases, couples must consider mediation and other forms of non-court dispute resolution before applying to court.

Mediation is generally cheaper and quicker than contested court proceedings.

Can I skip mediation and go straight to court?

It is not advisable, except for in limited circumstances. In most family law disputes you must make serious efforts to settle out of court. This includes attending a Mediation Information and Assessment Meeting (MIAM).

The MIAM is a preliminary informational meeting to discuss mediation and other non-court dispute resolution options as an alternative to court proceedings. Attending a MIAM assessment is usually mandatory before making certain applications to court, such as for a Child Arrangements Order, or a financial order arising from divorce.

During a MIAM, a mediator will discuss the issues in dispute with the parties involved. If mediation is deemed unsuitable, the mediator will provide a MIAM certificate.

It is only possible to go straight to court in limited circumstances such as in cases of domestic abuse, urgency, a risk of unlawful removal of a child from the UK, a significant risk of a miscarriage of justice, or a significant financial hardship to the prospective applicant.

It is possible to refuse to attend a MIAM meeting?

Mediation is a voluntary process, and a person can refuse to attend a MIAM meeting. There are exemptions that allow refusal to attend such as domestic abuse, urgency, child safety concerns, or when there is no mediator available within 15 miles.

What is a MIAM certificate?

A MIAM certificate is a document issued by a mediator following the MIAM meeting to see whether a case can be resolved without going to court. A certificate confirms that an individual has attended a Mediation Information and Assessment Meeting, and the mediator has assessed whether or not mediation is suitable for the case.

A certificate is valid for a period of 4 months from the date of issue and allows the individual to issue court proceedings within that period if necessary.

Can a Judge force a separating couple to attend mediation? 

While the Family rules do not give Judges the power to force parties to attend mediation, they do have the power to adjourn proceedings in order for mediation and other forms of non-court dispute resolution to be attempted if they consider it appropriate. If there is a failure by a party to attend mediation, the court may take this failure into account when considering whether to make an order for costs.

Is it possible to receive joint legal advice in divorce?

Joint divorce legal advice and negotiation is another form of non-court dispute resolution.

It can be used by a couple as long as there is a common interest or a shared objective when they wish to have an amicable separation, divorce, or dissolution of their civil partnership. It can help them decide the terms of how and when the relationship will end and make arrangements about finances and arrangements for children. Advice is given to the couple together, on a jointly beneficial basis.

What is the One couple, One lawyer model?

The One couple, One lawyer model also known as the one lawyer model – is an example of the joint legal advice where a single lawyer represents both parties jointly instead of each person hiring their own lawyer.

Key aspects of the one couple one lawyer model are:

  • Legal advice, information and options is given to both parties simultaneously to help them negotiate a settlement.
  • It is designed for couples who are largely in agreement on major issues and want to end their relationship amicably.
  • The lawyer aims to provide impartial, balanced, and neutral guidance on issues like the division of assets and property, and arrangements for children.
  • Open and transparent communication between the couple and lawyer is crucial.
  • The one lawyer model aims to provide a more amicable and cost-effective way for couples to end their relationship.

What is the difference between joint legal advice and mediation?

Joint legal advice is where a single legal professional provides advice to a couple jointly where there is no conflict, and they have a shared objective.

Mediation in contrast focuses on resolving conflict between a couple to reach an objective. The Mediator cannot provide legal advice.

What is Early Neutral Evaluation? 

Early Neutral Evaluation involves appointing an independent and neutral specialist (such as a retired Judge) to assess the strengths and weaknesses of each party’s case. The evaluator provides a non-binding opinion on the likely outcome if the case were to proceed to court.

Early Neutral Evaluation can be used as an initial step in the non-court dispute resolution process, providing parties with an early assessment of the strengths and weaknesses of their case.

What is arbitration in divorce?

Arbitration is an alternative and private method of non-court dispute resolution that allows couples going through a divorce or dissolution to resolve issues outside of court. Both parties agree to appoint a neutral third party (the Arbitrator) to make a binding decision on their case. The arbitrator hears evidence from both sides and makes a final decision that is legally binding, similar to a court judgment.

Arbitration is a faster, more flexible, and cost-effective alternative to court proceedings for resolving financial, property division, and child arrangement disputes.

What are the main differences between mediation and arbitration?

In mediation, the parties work together, with the help of a neutral mediator to reach a mutually agreeable voluntary solution. The mediator does not make decisions or impose outcomes

The arbitration process is more structured and formal as the arbitrator hears evidence from both sides and makes a binding final decision, similar to a judge in court. The arbitrator has control over the final decision.

What is Collaborative law?

Collaborative law is another form of dispute resolution for couples separating or divorcing that aims to resolve family law issues without going to court. Each party instructs their own collaboratively trained lawyer who then meet together in a series of “four-way meetings” to negotiate and work out solutions.

The process is based on principles of the couple and the two lawyers working together to problem solve with cooperation, transparency, and mutual respect.

The key element to the collaborative process is that if negotiations break down, the collaborative lawyers must withdraw and new lawyers must be appointed. This is often referred to as the “glue” which holds the process together.

Unlike mediation, in collaborative law each party has their own lawyer present throughout negotiations.

What are the benefits of using non-court dispute resolution? 

Non-court dispute resolution provides a less adversarial, cheaper, and quicker solution to couples wishing to end their relationship. The benefits are:

  • It is more cost effective as the process is shorter than court proceedings, and in many cases, parties can use one legal professional instead of each party “lawyering up”.
  • The process is far quicker and flexible – An average contested divorce financial case usually takes 24 months from start to finish. By contrast most non-court dispute resolution cases can be concluded within half the time.
  • Flexibility and control – The couple sets the pace and the timetable they are comfortable with.
  • Less adversarial – Everyone works together without acrimony and conflict.
  • Certainty – You know from the outset what your legal fees will be as fees are often fixed.
  • Transparency – If both parties are committed to honest and open dialogue expressly aimed at reaching a common goal of reaching a fair agreement, the likelihood of hidden agendas, positional stances or game playing tactics are greatly reduced.

What is a statement of position on non-court dispute resolution?

A statement of position on non-court dispute resolution (Form FM5) is a formal document that parties involved in family law proceedings must submit to the court before their first hearing.

The form requires parties to provide information on whether they have participated in any form of non-court dispute resolution regarding the issues in dispute, and if not, why not.

The introduction of the form is part of recent changes to the Family Procedure Rules that aim to strengthen the use of non-court dispute resolution in family law cases.

Which is the most formal of the non-court resolution methods?

Arbitration is generally considered the most formal of non-court dispute resolution as it follows a structured process similar to a court trial, where both parties present evidence and arguments. Unlike mediation or negotiation, arbitration results in a binding decision, which is usually final and difficult to appeal.

What is an out of court settlement?

An out-of-court settlement is simply an agreement reached by a couple without the need of a Judge deciding the outcome in a divorce. This can be achieved by any of the methods of non-court dispute resolution discussed above.

 

 

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