Non Court Dispute Resolution – What is it and why it matters…

In this video Ursula Rice goes over what you need to know about Non Court Dispute Resolution. For more information, click here.

No time to watch the video? Here’s the transcript:

Hello, welcome to the Family First channel in which today I’m going to explain to you about non-court dispute resolution.

What is it and why do you care?

So non-court dispute resolution is, it does what it says on the tin, you’re not in court, you resolve your dispute. I would say there are one two, three, four, five, six; six basic sorts of non-court dispute resolution and they tend to have different uses for different times. The one that everybody knows about, I would say most people have heard of, is mediation.

What is mediation?

You sit in a room with somebody who’s going to referee your discussion, it helps people stay focused on topic, and makes sure they get all the issues properly aerated. Often it can really help with communication.

Most mediators will not be particularly directive. They won’t say this is wrong, this is right. A lot of the time they will say, well, you might need to get legal advice about that. So mediation can be quite, you can tailor it.

So for example, you could have what’s called hybrid mediation when your solicitor is there with you. You could have shuttle mediation where you never sit in the same room as your ex. Or you could have bog standard mediation where everybody’s in the same room or on the same Teams call.

I think mediation is a great way to get to the bottom of a dispute before anybody starts talking about courts and indeed about lawyers. You don’t need a lawyer to use a mediator, although lots of lawyers are mediators, not me.

Next, number two sort, early neutral evaluation.

That is a piece of work by an independent, neutral mediator. qualified lawyer could be a barrister could be a solicitor where they do often for a fixed fee they will look at all your paperwork and say you’ve given me all the information I think this is the right thing to do as you can imagine this would work really quite well with a mixture of mediation and then early neutral evaluation so you get some stuff sorted out but then you get stuck.

There is also private FDRs.

Private FDRs mean that you’re probably in proceedings. You’re in proceedings and you’ve done all the disclosure, but you have potentially a final hearing coming up. So you spin off and you have a privately hired judge-type person, obviously a qualified lawyer, and you go to that person, probably in their office with your ex, and you say, this is why I think I’m right, that’s why they think they’re right, why I think they’re wrong, and they get to say the same about you.

Then at that point, your private FDR judge gives you their their thoughts on the matter so it’s a bit more like live early mutual evaluation, tends to be people who are in proceedings.

Then there’s arbitration.

Arbitration is where you contractually bind yourself to accept the arbitrator’s decision. Arbitrators are qualified by the society I think it is of arbitrators or the school of arbitrators so you can’t just have anybody do it, and they will usually give you a written decision and of course it can be very fast, all of these things can really speed you up.

Finally there’s single solicitor service.

Single solicitor services does what it says on the tin you have one lawyer two clients everything you hear your ex hears as well so you’ll find it’s got that mediation vibe but the single solicitor service solicitor is going to be telling both of you who’s wrong and who’s right from a legal perspective.

I suppose finally you then have a combo of all of these. So I think, for example, early neutral evaluation is great, tacked on to mediation if you get stuck. Private FDR is for people who are in court. Single solicitor service should, if it works well, if you’ve been appropriately assessed before you start the single solicitor service, it’s almost certainly going to result in settlement and you’ll go nowhere near a court.

So those are the sorts.

Why does it matter? It matters because the family law pre-action protocol expects you to reasonably consider a form of non-court dispute resolution.

If you don’t, you could be penalised in costs. Don’t get me wrong. Sometimes court is the only way to make somebody do the obvious thing. And sometimes court needs to run along at the same time as mediation. But I can tell you most courts over the coming twelve months will start to put more pressure on people to do a form of non-court dispute resolution. So if you think you’d like to find out more, please do look at our website. We have a great page all about the non-court dispute resolution and we would be very happy to help you pick the kind of NCDR for you and to advise you on your options.

Thanks for listening.