The benefits of NCDR, with a focus on the collaborative process.
Separating from your partner or spouse can be a very distressing time. In most cases key decisions will be made such as with whom the children should live and the time they spend with the other parent. There is often a whole variety of financial issues to be dealt with too. In the vast majority of cases separating couples will start off having the best of intentions in trying to resolve any disputes in a respectful way, particularly where they know they will need to co-parent with their former partner or spouse moving forwards.
Most separating couples will usually try and resolve some of the issues between themselves, but naturally there can be disagreements over what should happen, with the separating couple each feeling anxious over their future. It is usually at this stage they may consider taking legal advice. What usually follows is a series of correspondence between solicitors and a process of financial disclosure.
Whilst in some cases lawyers are able to help separating couples come to an agreement, many people find that antagonistic letters from their former partner or spouse’s solicitor inflames the situation and makes coming to an agreement even more difficult. This can then often lead to the court process being instigated. Many separating couples come out of the court process feeling disillusioned, having incurred substantial costs, facing significant delays and having a judge impose a decision on them that they are not happy with.
In recognition of the underfunded and backlogged court system, as of 29th April 2024, changes have been made to the Family Procedure Rules relating to non-court dispute resolution options – “NCDR”. One of the changes now requires parties to provide the court with an explanation as to how they have meaningfully engaged with NCDR and/or why they consider the court’s intervention to be necessary. These new rules aim to encourage and incentivise couples to engage with NCDR which means that there is no better time for separating couples to consider some other form of out of court resolution.
Mediation is often encouraged as one form of out of court resolution, but many separating couples feel uneasy at having to negotiate matters with their former partner or spouse, without having their lawyers present guiding them. Hybrid mediation is becoming increasingly popular for that very reason as it tackles this issue by providing for both partners to attend along with their lawyer, meaning that each partner can obtain the necessary support and legal advice as desired throughout their mediation.
Another lesser known option available to couples is collaborative law. In collaborative law the separating couple each instruct their own collaboratively trained lawyer and, rather than a series of correspondence being exchanged between the lawyers, the couple and each of their lawyers attend a series of roundtable meetings and deal with matters face to face. Rather than dealing with their lawyers individually, at the roundtable meetings the couple would work with their lawyers together to reach the best solutions for them and their family. This could involve instructing third parties, such as an IFA or a family consultant, where needed.
One of the main benefits of the collaborative process is it allows separating couples to move at a pace which is comfortable to them and they can agree the necessary steps between them to help find a resolution, rather than having to comply with orders and deadlines imposed by the court.
What is particularly unique to the collaborative law process is that the couple sign a participation agreement, confirming their intention to deal with matters outside of court. In the event the separating couple were unable to reach an agreement through the collaborative process, the participation agreement would confirm that the separating couple could no longer instruct their current lawyers and would need to find another lawyer to represent them in the court process, showing their commitment to resolving the matter outside of court.
The family team at Field Seymour Parkes are committed to dealing with family disputes outside of the court process with Sue Baker and Madeleine Young being both collaboratively trained lawyers and mediators.
If you would like to find out more about collaborative law or mediation and discuss whether the process is right for you, please get in touch by emailing [email protected] or [email protected].
