Would be litigants must now explain to the court their views on using non court dispute resolution (NCDR for short), as a formal stage in the court process.

The court has power to punish parties who fail to engage in non court efforts to settle their dispute, in particular it has power to take into account parties’ behaviour in relation to NCDR, when exercising its discretion to make orders for costs.

But how can people involved in disputes about matrimonial finances or children get the most out of non court dispute resolution processes?

An obstacle for many people is the added cost of out of court dispute resolution, and the lack of any guarantee it will be successful in settling the dispute and avoiding the subsequent costs of litigation.

Another perceived obstacle is a concern that the other party to the dispute may be motivated to string things out deliberately, including by pretending to engage with NCDR, without any real intention of being reasonable or making a fair offer. 

Accredited mediator Sarah Fairbrother, head of Family at Ward Gethin Archer, offers the following tips:

• Choose a solicitor who is a member of Resolution (www.resolution.org.uk), and encourage the other person to do the same.  Resolution members are committed to a constructive, child centred approach to family disputes.

• No matter how furious you feel inside, keep negotiations business-like. No one wants a divorce like Michael Douglas’ and Kathleen Turner’s in the film War of the Roses.

• If you and your ex are miles apart and you believe agreement will truly be impossible, consider out of court options such as private arbitration.

• If you are struggling to fund the costs of NCDR, consider asking your ex to pay. The court will take constructive proposals like this into account when considering whether parties have acted reasonably. 

• Be proactive – if you don’t like the suggestions your ex has put forward, make some of your own and explain why yours are reasonable.

• Look for a mediator accredited to conduct child-inclusive mediation, if your child is old enough to expect their views to be taken into account.

• Be open to replacing stages of the court process with NCDR alternatives, such as private Financial Dispute Resolution Appointments in applications for a matrimonial financial remedy order. The additional upfront cost for a private judge is normally shared, and if the additional time and consideration results in successful settlement, will ultimately save the parties money, compared with the cost of ongoing contested court proceedings.

• Make the most of mediation or other NCDR process by being fully prepared.  Remember you can consult your solicitor before each meeting if you need to.

• If you require specialist advice, but want to commit to an amicable process, consider instructing a collaboratively trained solicitor.  There is further information on Resolution’s website at www.resolution.org.uk.

• Formal round table settlement meetings with solicitors present may be an option, particularly if you find dealing with your ex daunting.

“Nobody can afford to ignore non court dispute resolution these days,” comments Sarah.

“Ask your solicitors about the options available, and always remember you may need to justify your decisions to the court”.