18th July 2024

Family Law FAQs -What is Non-Court Dispute Resolution (“NCDR”)?

Family FAQs: What is Non-Court Dispute Resolution (“NCDR”)?

Our Family team has put together answers to some of its most frequently asked questions and we’ll be sharing them over the course of the coming months. We begin the series with this…

What is Non-Court Dispute Resolution (“NCDR”)?

Before 29 April 2024, mediation was the only NCDR method which the Family Procedure Rules specifically referred to. However, following 29 April 2024, mediators and parties to a dispute relating to children or financial issues on divorce must consider a wider range of NCDR options and not just mediation as an alternative to Court proceedings.

NCDR is an acronym for Non-Court Dispute Resolution and is defined within rule 2.3(1) of the Family Procedure Rules as being 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.

There is a new requirement for both parties to Court proceedings to send to the Court and to each other a Form FM5 Statement of Position on non-court dispute resolution seven days before the first hearing. The purpose of this form is to make each party’s position in relation to NCDR clear to each other and to the Court.

The changes to the rules mean that the Court is now able to adjourn Court proceedings to encourage the parties to consider NCDR options. Another notable change is in relation to costs. In financial remedy proceedings on divorce, the Court can now make costs orders where one party refuses to take part in NCDR.

In the recent case of X v Y 2024 EWHC 538 (Fam), The Honourable Mrs Justice Knowles highlighted the importance of the changes to the rules regarding NCDR saying “Going forward, parties to financial remedy and private law children proceedings can expect – at each state of the proceedings – the court to keep under active review whether non-court dispute resolution is suitable in order to resolve proceedings”. Justice Knowles also noted that in a case where either party fails to engage in NCDR when there was no good reason to object, the Court will be able in financial remedy proceedings to consider making a costs order against the party who refuses to engage in NCDR.

In summary, there is now a requirement for parties to a dispute relating to children or financial issues on divorce to consider NCDR at the outset of Court proceedings and during natural breaks in those proceedings.

More than ever, it is now essential that parties to a dispute give proper consideration to settling the matter outside the Court arena, as following the recent changes to the Family Procedure Rules, the Courts now have greater powers to hold parties to account in cases when proper consideration hasn’t been given to NCDR.

However, while NCDR is always worthwhile pursuing if appropriate, it should be noted that in some cases it may be unsuitable. In some cases, taking the matter to Court is the only realistic way forward especially if parties have a history of domestic abuse. If you are unsure as to whether NCDR is appropriate in your case, then we can guide you.

If you are seeking advice relating to a children matter or financial issues on divorce, then please feel free to get in touch with us on 01228 552222 and ask to speak to a member of the Family team to set up an appointment.