In the fast-paced and ever-evolving world of family law, staying ahead of the game is not merely a luxury, it’s an absolute necessity. The recent revisions to the Family Procedure Rules (FPR), particularly those introduced on 29 April 2024, serve as a stark reminder that non-court dispute resolution (NCDR) should no longer be viewed as an optional afterthought. If you’ve missed this memo, the case of NA v LA [2024] EWFC 113 should grab your attention like a shot of espresso on a Monday morning.
By Baldip Singh and Femi Ogunlende, No5 Barristers’ Chambers
The Shift in Judicial Expectations: A Paradigm Case
On 23 May 2024, Nicolas Allen KC, sitting as a Deputy High Court Judge, demonstrated a hands-on approach in NA v LA, wielding the freshly minted FPR revisions like a seasoned conductor leading an orchestra. Describing the matter as a “paradigm case” for exercising the court’s new powers to encourage NCDR, Allen KC made it crystal clear that avoiding litigation would benefit not just the parties, but their children, too.
Now, you may be thinking: Isn’t it a bit premature to tell clients to start making friends over coffee and compromise before we’ve even seen the assets? Well, think again. The judge, much like Gwynneth Knowles J in X v Y [2024] EWHC 538, signalled that the court’s new-found enthusiasm for NCDR is not merely a suggestion. It is a mandate, which no longer depends on the parties’ agreeing to put the court proceedings on hold. To paraphrase in less judicial terms: if you don’t try to play nice, the court might play rough with your costs.
Non-Court Dispute Resolution: The New Normal
Let’s address the elephant in the room—financial disclosure. Lawyers have long clung to the notion that disclosure is a prelude to negotiations, but Peel J’s now-immortal words should echo in every practitioner’s mind: “It is not simply a case of disclosure before we contemplate anything.” In other words, you might want to get comfortable with the idea that NCDR can, and should, begin before those spreadsheets are finalised.
Allen KC, echoing this sentiment, emphasised that “there is no need for financial disclosure to be given prior to the parties engaging in NCDR,” as most forms of NCDR can handle the need for disclosure within their own processes. And just in case you were hoping to dodge NCDR by citing a conveniently urgent exemption, the court has made it clear they will be scrutinising MIAM exemptions like a hawk.
The Costs of Playing Hardball
For those litigators who still relish the thrill of a courtroom showdown, the revised FPR rules should give pause. The new amendments explicitly permit the court to consider a party’s failure to engage in NCDR when making decisions about costs. And, as Allen KC pointedly remarked, any party who skips the NCDR appointment without a “good reason” might find themselves on the wrong end of a costs order.
The message is loud and clear: if your client stubbornly refuses to explore NCDR, they may not only lose the moral high ground—they might lose a chunk of their bank balance, too. So, the next time your client frowns at the mention of mediation, remind them that even the costliest arbitration can look like a bargain compared to a full-blown court battle.
Courtroom Diplomacy: It’s in the Fine Print
In NA v LA, the wife’s counsel objected to a stay, arguing that she was flying “semi-blind” on the husband’s assets, with no First Directions Appointment in sight. But Allen KC, ever the forward-thinking pragmatist, decided that the time was ripe to hit pause and let NCDR work its magic. By staying the proceedings, he encouraged both parties to reach a settlement without the looming threat of an adversarial courtroom drama.
In doing so, Allen KC invoked the revised FPR r 3.4, which empowers the court to push parties towards NCDR, even without their consent. As the good judge explained, there’s a reason the word “encourage” now comes with the full backing of cost penalties.
Keeping your head down won’t work
If you think you can avoid your client engaging, or attempting to engage, in NCDR by just saying nothing and hoping the judge won’t be as sharp as Nicholas Allen KC, think again – that is not going to work. HMCTS have kindly created a form (FM5) to make sure NCDR will not be forgotten by the judge at the first hearing or at subsequent hearings.
The FM5 must be filed and served 7 days before the first hearing. The form asks for answers to the questions you probably wish you could avoid, such as have the parties attended NCDR (which does not include attending a MIAM) and if so, which type they have attended. It also asks why, having attended NCDR, a court order is now sought. The parties also have to explain why NCDR was not the right way of resolving their dispute. If the parties have not attended NCDR, they will still have to explain why it was not the right way of resolving the dispute.
If there isn’t a good reason why your client has not attended NCDR, the FM5 provides no hiding place for him or her when the reckoning on costs eventually comes, so beware.
What exactly is NCDR?
If the purposes of FM5 is to encourage the parties to have fully explored NCDR before issuing proceedings, and if more judges are to hit the pause button for NCDR to take place, what are the options? If you still think NCDR is limited to mediation and arbitration, read on. NCDR is exactly what it says on the tin. It covers all forms of dispute resolution that don’t take place in a court. That’s a lot of potential options. Let’s take a look at some of main types of NCDR, starting with the one every knows, mediation.
While everyone knows something about mediation, they often don’t know all flavours it has to offer. Mediation can be by either a single mediator (the popular choice) or can be by co-mediators (for example where children and finances are being mediated). The mediator can be a lawyer or a non-lawyer. The mediation can be by the conventional family model (where the mediator sees the parties individually and/or jointly without lawyers over several sessions) or can be by the commercial mediation model (this is usually a full day of mediation and the parties’ lawyers attend as well). Both models can put protective measures in place if there are allegations of domestic abuse.
Another common form of NCDR is the private FDR/ early neutral evaluation (ENE). The pFDR/ENE needs no introduction. The FDR hearing is well known to all financial remedy practitioners and a pFDR is essentially an FDR hearing that take places in a nice building where you actually have a comfortable room for as long as you need it and lunch is an option. The pFDR is fully supported and encouraged by judges, so if litigation has started, a judge will happily provide the parties with time for one to take place. Although the early neutral evaluator is often called a private FDR judge, they are not a judge. Rather, they are someone both parties have invited to help them resolve their dispute by evaluating the evidence and expressing a view on possible outcomes at a final hearing. An evaluator’s is focused on the merits of disputes, unlike most mediators.
A less widely known, but effective, form of NCDR is collaborative law. This process involves the parties each instructing a collaborative lawyer. There is no outside neutral evaluator or mediator to facilitate an agreement. However, the process does allow the parties to involve other collaboratively trained professionals, such as a financial adviser. The dispute is usually resolved in a series of four-way face-to-face meetings, where both the parties and their lawyers are present. If the process does not result in an agreement, litigation is still an option.
What all the forms of NCDR briefly outlined above have in common is that the outcome is not imposed on the parties. They have to agree to it and if they don’t like what is on offer they can pull stumps and walk away. That is not the case with the final form of NCDR we are going to briefly look at.
Arbitration has been allowed in family cases for over a decade now and family law is still playing catch-up with commercial arbitration in terms of its popularity. Arbitration involves the parties agreeing to arbitrate, choosing an arbitrator and asking the arbitrator to resolve their dispute. Each party will instruct their own lawyers to represent them though out the process. The parties can arbitrate the whole dispute, a single issue or anything in between. Arbitration is closer to litigation than other forms of NCDR in that the parties will get a decision at the end of the process which they cannot simply walk away from. If a party doesn’t like the decision, getting out of it will not be easy.
The Future of Family Law: Embrace the Change
For those who still treat NCDR like a modern art exhibit—curiously admired but never fully understood it’s time to reconsider your stance. The court’s duty to actively manage cases, particularly under the newly energised FPR, means that litigators who don’t embrace NCDR may find themselves outpaced and outmanoeuvred.
As the legal landscape shifts towards a culture of resolution over litigation, being able to advise your client not just competently, but thoroughly, is now the gold standard. Whether it’s mediation, arbitration, or any other form of dispute resolution, getting ahead of the curve means understanding that NCDR is no longer a sidebar—it’s the main event.
So, the next time you find yourself itching to draft that court application, take a moment to reflect. Is the courtroom really the best arena for your client? Or might a well-timed coffee break with the opposing side save them—financially, emotionally, and legally?
In an era where the rules are changing faster than the seasons, those who adapt will thrive. The rest? Well, they’ll be paying the price—quite literally. So if our NCDR team can assist you please get in touch.
Baldip Singh
Femi Ogunlende
No5 Barristers’ Chambers
London | Birmingham | Bristol
