What happens if I refuse Non-Court Dispute Resolution (NCDR)?

Non-Court Dispute Resolution (NCDR) gives families the chance to resolve issues amicably without court intervention. However, refusing to participate in this method of mediation without good reason can now lead to court-imposed costs sanctions.

Recent changes to the Family Procedure Rules (FPR) highlight the Family Court’s commitment to promoting NCDR at every stage of proceedings, as demonstrated in the case of NA v LA [2024]. 

For Family Mediation Week (27–31 January), Debbie Heald explains these changes and their potential implications.

What is Non-Court Dispute Resolution?

NCDR involves methods that allow parties to resolve issues without making a court application. These include mediation, arbitration and early neutral evaluation. 

Arbitration involves an arbitrator (experienced family law solicitors, barristers or retired Judges) with the power to make binding decisions and will have no connection to your case. This could be used for financial or child disputes such as child arrangements, child relocation, schooling, religion, holidays or a child’s name.

Mediation involves a specially trained, independent family law mediator. The mediator doesn’t provide legal advice but assists the parties to reach an agreement. Mediation is often used to determine asset division and child custody in separation cases. A consent order turns the agreement into a legally binding and enforceable outcome once it receives approval from the Court.

The Early Neutral Evaluation process involves a neutral third party (often a lawyer or expert) to act as a Judge and assess the merits of a legal dispute between parties, providing an opinion on the likely outcome of the case to help them reach a settlement without going to full court proceedings. These can be used in either financial or children matters.

Engaging in NCDR is expected in all cases unless there is a “good reason”. If one party unreasonably refuses to engage in NCDR then the Court may decide to order sanctions for the non-complying individual.

Court-imposed costs sanctions

The Court has the power to make costs sanctions under Rule 28.3 of the Family Procedure Rules (FPR) requiring one party to pay the costs of another party, if it considers it “appropriate to so do because of the conduct of a party in relation to the proceedings”. These can be applied in relation to conduct before or during proceedings.

When considering whether to impose a costs order, the Court must consider the matters set out at Rule 28.3(7) which include: 

“a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;

(b) any open offer to settle made by a party;

(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;

(e) any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and

(f) the financial effect on the parties of any costs order.

The following matters were recently added to Rule 28.3(7):

(aa) any failure by a party, without good reason, to—

(i) attend a MIAM (as defined in rule 3.1); or(ii) attend non-court dispute resolution”.

How have the rules changed?

Before April 2024, the rules permitted the Court to adjourn proceedings for NCDR where both parties agreed. 

However, the recent amendments to the FPR now require the Court to actively consider NCDR at every stage of the proceedings. In addition to the amendments to FPR 28 outlines above, FPR 3.3(1A) has been added to allow the Court to require parties to file and serve “in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings”.

The updated rules now give the Court power to order parties to attempt resolution through NCDR before seeking a judicial determination of the matter, marking a more robust approach and commitment to NCDR methods.

Why do the Family Procedure Rules (FPR) advocate for NCDR?

When NCDR is used rather than typical proceedings, it’s likely that the matter will be dealt with quicker and more cost effectively. It also allows the parties to preserve their relationship which is particularly helpful when children are involved.

How has this worked in practice?

The recent case of NA v LA [2024] EWFC 113 set out the fundamental shift in the Court’s approach to NCDR. 

In this case, the Court paused the wife’s financial remedy application to allow the parties to engage in NCDR. The Judge determined that the initial urgency in the case had dissipated, following the making of orders to preserve the assets and therefore materially changing the landscape of the case such that urgency was no longer a “good reason” to refuse to engage in NCDR.

This case highlights the continuous duty to consider NCDR throughout a case and that judges are actively encouraging parties to do so. It also shows that changing circumstances can prompt fresh consideration of NCDR where it hasn’t been used before.

Talk to us

Our award-winning family law team has a wealth of experience in using NCDR methods to resolve family matters. Experienced family lawyer and Partner Helen Marriot is qualified to adjudicate on interim and substantive financial issues and our Head of Family and Partner Cara Nuttall is a qualified Children Arbitrator. 

If you’d like support with resolving a family dispute, talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.