When facing separation or divorce, many people assume that going to court is inevitable. In reality, court should usually be the last resort. Non-court dispute resolution (NCDR) offers quicker, often cheaper, and far less stressful ways of resolving issues around money, property, and children.
Why avoiding court makes sense
Mark Studdart, a Partner in the Family Team at Gordons Partnership, explains that “All good family lawyers will strongly recommend to anyone who comes to see them that, if possible, they should avoid going to court”. Proceedings are expensive, drawn-out, and the results can be unpredictable. “There can be some reasons why we might recommend court proceedings, for example, there might be a party disposing of assets and there’s a need for a freezing order, or an issue about which jurisdiction a divorce should take place in”, but these are the exception, not the rule.
For the majority of separating couples, exploring non-court options is both practical and sensible.
Mediation: the most common choice
Mediation is often the first alternative people try. It involves sitting down with an independent, trained mediator in a confidential process.
Mark explains that “The mediator helps you go through getting your financial documents together, housing budgets, and income needs budgets and reviews how separation impacts both sides. It allows discussion about other issues, such as child arrangements. It helps people to reconnect and to start to communicate more effectively again. It is not for everyone and lawyers are conscious about whether there will be a “level playing field” and whether it is suitable for all.
Hybrid mediation is one way to address this. In hybrid mediation, lawyers attend but do not speak for their clients. Instead, they give advice quietly in the background so parties can make informed decisions quickly without repeated delays.
Mark continues “If you reach an agreed outcome, a memorandum of understanding is produced by the mediator. The mediator will then advise you to take independent legal advice about whether this is what you should really agree to openly”.
Other effective approaches
Mediation is just one option. Others include:
- Round table meetings: Both parties, along with their lawyers and sometimes barristers, sit down to address the key issues directly. This can be more constructive than a stream of letters between solicitors.
- Early neutral evaluation: A senior barrister or former judge gives a view on how the case would likely be decided in court. This can be valuable where expectations are unrealistic, or where complex issues such as pensions, taxation, or asset valuation need expert input.
- Private FDR (Financial Dispute Resolution): Similar to early neutral evaluation, but designed to replicate a court FDR hearing in a private setting. Both parties present their cases to a chosen “judge” who provides a realistic assessment of outcome.
- Arbitration: A more formal option where both parties appoint an arbitrator, often a senior barrister or judge, who hears the case and makes a binding decision. It functions like a private court but is typically faster and can even be cheaper than the traditional court system once the costs of delays and multiple hearings in the court system are factored in.
The legal framework and court’s view
Non-court dispute resolution (NCDR) is not just encouraged, it is now built into the family law system. Before starting proceedings, most people must attend a Mediation Information and Assessment Meeting (MIAM). Courts can adjourn cases and require parties to try non-court options, and they may penalise those who refuse without good reason.
At every hearing, parties must file a form explaining what steps they have taken to explore non-court routes. Judges are paying close attention to this. There have already been cases where courts questioned why people had rushed into litigation without trying alternatives first.
Suitability and safeguards
Non-court processes are not suitable for every situation. In cases involving abuse, whether physical, emotional, or financial, mediation may not be safe or fair. Some people also feel at a disadvantage if they have never been involved in managing the family finances or the other party is controlling. In such cases, hybrid mediation or shuttle mediation (where the parties are in separate rooms or even different buildings) may help.
Technology has also made it easier to conduct mediation remotely, giving each person the space they need while still working towards resolution. In some cases, you can speak directly to the mediator in private. The mediator then passes your views to the other person, helping the conversation move forward without the stress of direct confrontation.
Practical advantages
The benefits of avoiding court go beyond cost. Mediation and similar options help couples retain more control over the outcome. They can decide together rather than having a judge impose terms on them. The process also tends to be quicker. For example, arbitration can conclude in weeks rather than the many months or years often taken in court proceedings.
The government has even introduced a voucher scheme to support this approach, offering £500 worth of mediation with accredited mediators. This reflects the wider shift towards encouraging families to resolve matters collaboratively.
Communication at the heart
Ultimately, non-court dispute resolution is about communication. Even when relationships have broken down, finding a way to talk and work through decisions together usually leaves people feeling more in control and more satisfied with the outcome. Gordons Partnership is here to support you through this entire process and make it as simple as possible for you.
About the Author
Partner
Tel: 01483 451 900
Email: Mark@gordonsols.co.uk