Non-Court Dispute Resolution: An Effective Alternative to the Courts

Posted by Hannah Porter on 25th June 2024

As family lawyers we try our best to keep matters amicable and conciliatory, even throughout court proceedings. However, resolving these disputes through the court system can often be costly, time-consuming, and emotionally draining. As a result, non-court dispute resolution methods have gained significant popularity as effective alternatives to litigation, and the recent case of NA v LA has sent a clear message that Non Court Dispute Resolution (NCDR) should be encouraged for all parties to proceedings. Solicitor Hannah Porter explains.

Until recently, when a party had issued court proceedings, the judge hearing the case had little power to ask parties to try NCDR instead but these rules have now changed giving judges the ability to pause proceedings for NCDR. NA v LA gives an insight into the court’s attitude to NCDR:

• Full financial disclosure can be obtained outside the realms of Court proceedings, it is not necessary to issue proceedings to make disclosure happen
• Mediation should always be carefully considered, even if it may not have been appropriate at the outset of a case, as time moves on and emotions grow calmer it may be possible to reach a resolution via mediation. A Judge may ask that parties consider mediation half way through a Court case in any event.
• Courts are likely to start pushing more cases to NCDR, there is great pressure on the Court system with extensive delays and the more cases that can be dealt with outside of proceedings, the better.

Nicholas Allen KC sitting as a Deputy High Court Judge in the case of NA v LA stated: ‘I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.’

NCDR includes mediation, arbitration, negotiation, and collaborative law, and each offer parties a more flexible, private, and often less adversarial means of resolving conflicts.

Mediation: A Collaborative Approach

Mediation involves a neutral third-party mediator who facilitates a discussion between the disputing parties to help them reach a mutually acceptable agreement. Unlike a judge or arbitrator, the mediator does not impose a decision but assists the parties in exploring their needs and interests, fostering open communication, and generating options for resolution.

The key advantages of mediation include:

• Control and Flexibility: Parties maintain control over the outcome and can tailor solutions to their specific needs.
• Confidentiality: Mediation is a private process, and discussions cannot be published.
• Preservation of Relationships: By encouraging cooperation and communication, mediation can help preserve relationships, this is especially important where children are involved.

Following mediation, any agreement reached between parties regarding their financial matters can be drawn up into a Consent Order by lawyers and sent to the Court for approval and sealing (meaning the agreement reached becomes a binding court order).

Any agreement reached between parties regarding their children may be drawn up into a parenting plan that both parents agree to adhere to. This formality is helpful in confirming both parties intentions and leaves flexibility for arrangements to change by agreement as children grow older and their needs/wishes may change.

Arbitration: A Binding Decision

Arbitration is a more formal process than mediation, where an arbitrator or a panel of arbitrators listens to the evidence and arguments presented by the parties and then makes a binding decision. This process is similar to a court hearing but is usually less formal and can be faster and more cost-effective.

The primary benefits of arbitration include:

• Expert Decision-Makers: Arbitrators often have specialized knowledge relevant to the dispute, leading to more informed decisions.
• Speed and Efficiency: Arbitration can be quicker than the court process due to simplified procedures and flexible scheduling.
• Enforceability: The arbitrator’s decision is binding and enforceable in a court of law.

Negotiation: Direct Resolution

Negotiation is the most informal method of dispute resolution, where parties engage in direct discussions to reach a settlement. This process can either be via lawyers letters or directly between the parties themselves.

Key advantages of negotiation include:

• Autonomy: Parties have control over the process and the outcome.
• Cost-Effectiveness: Negotiation can be the least expensive method of dispute resolution.
• Prompt Resolution: Negotiation can lead to quick agreements, allowing parties to move forward without prolonged conflict.

As with mediation, any financial agreement reached should be sent to lawyers to be drawn up into a legally binding Consent Order to be sent to the Court for approval and sealing. Similarly with children matters, it is always wise to ask lawyers to write any agreements reached into a parenting plan to be signed by both parties.

Collaborative Law: A Team-Based Approach

Collaborative law is a unique method where each party retains a lawyer, and all parties agree to work together cooperatively to resolve their dispute without going to court. This approach often involves other professionals, such as financial advisors, to address various aspects of the conflict.

The advantages of collaborative law include:

• Holistic Solutions: By involving a team of professionals, parties can address legal, financial, and emotional aspects of their dispute comprehensively.
• Commitment to Resolution: The agreement to avoid court creates a strong incentive for parties to find mutually satisfactory solutions.
• Reduced Adversarial Nature: The collaborative process fosters a problem-solving atmosphere rather than an adversarial one.

Conclusion

Non-court dispute resolution methods offer numerous benefits over rushing to issue court proceedings. They provide parties with more control, flexibility, privacy, and often a quicker and more cost-effective means of resolving conflicts. By fostering collaboration and communication, these methods can also help preserve relationships and lead to more satisfactory outcomes for all involved. When Court proceedings are issued and a Judge is asked to impose outcomes on parties, both parties may end up in a financial position that is not their preferred outcome. Similarly, if parents can negotiate between themselves and reach a parenting contact arrangement that works for everyone this is always far better for the children involved than a Judge imposing a decision.

Sometimes issuing Court proceedings is the correct approach but this should increasingly be so in a minority of cases. Here at the Family Law Company we always look to have an amicable approach to your matter, seeking solutions that work for you and your family situation. If you are considering issuing Court proceedings or wish to take a different, less adversarial approach to your matter, please do not hesitate to contact us and book in a free half hour.

Need some advice? Get in touch today