By Jack Henry, Barrister, Henry Chambers

1. Professionals who work within the family law space have witnessed a transformation in how family disputes can be considered, approached and resolved. This change has been driven by the growing influence of non-court dispute resolution (NCDR). NCDR centrally comprises of mediation, arbitration, collaborative law and private evaluations, which include but are not limited to private financial dispute resolution hearings. All of these are structured alternatives to the long established, and well-trodden, court process and are intended to provide resolutions to the parties that can avoid the difficulties of the court process. The Family Procedure Rules provide that “the court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate” (FPR 3.3(1).

2. It has been clear for several years that NCDR is an evolving part of the family law space. NCDR was once on the periphery of the family law ecosystem but there has been a continual advance of this approach to the heart of everyday legal practice. Additionally, there has been the growing influence of NCDR in policy debate and procedural reform, as well as the growing numbers of family law practitioners that are trained in the various forms of NCDR.

3. It should be noted that it is of no coincidence that this progression works in harmony with broader social and economic pressures, not least the fact that the family court justice system remains burdened under the weight of persistent substantial and seemingly unrelenting pressure. According to the National Audit Office and their report on the 21^st May 2025, “as at December 2024 over 4,000 children were in proceedings lasting nearly two years or more”. Additionally, there “were 47,662 outstanding family court cases brought by local authorities (10,121) and families (37,541) related to the living and contact arrangements for children”. Mostyn J himself stated in AS v CS (Private FDR) [2021] EWFC 34 that “Private FDRs should be encouraged. They tend to be more successful than in-court FDRs and take pressure off the over-stretched court system”.

4. The Ministry of Justice stated in the Family Court Statistics Quarterly: July to September 2025, that there were “67,844 new cases started in Family courts in July to September 2025, up2% on the same quarter in 2024”. Furthermore, there were “12,634 financial remedy applications made in July to September 2025, up 7% from the same period in 2024, while there were 12,268 financial remedy disposals events, up 6% compared with a year earlier”. This only seeks to add to the burden on an already stretched system. The ripple effect created by the volume of cases, stretches out far beyond our initial view. There is substantial impact on the parties, both financially, mentally and sometimes even physically as well as the children and close family and friends. Furthermore, Judges, court staff and practitioners are all affected.

5. We are fast approaching the two year anniversary of the FPR Amendment No.2 2023 which came into force on the 29^th April 2024. This amendment brought about an expansion of the NCDR process in the family law space and through the Form FM5, parties in private law children proceedings and in contested financial remedy proceedings parties are required “to file and serve a standard form setting out their views on engaging with non-court dispute resolution”. The intention of this amendment and the Form FMH5 was to focus the gaze of the parties and their representatives on alternative methods for handling family law issues.

6. Family law cases, particularly those arising from separation of divorce, are inherently often emotional and complex. Issues such as financial settlements, child arrangements and property division, to name but a few, reach into very core aspects of our lives. They force the parties to consider when they will see their children, where will they live and how will they pay their bills. This is an area therefore of not just legal concepts and arguments but one of deeply personal relationships and issues as well and the future of family dynamics. Such a complex thing can often feel restrained and stressed in the traditional court environment. This in turn can exacerbate conflict and inflict wounds on the parties that last far beyond the case itself and cut far deeper. It has been recognised that the NCDR can, where effectively handled in the appropriate case, offer a softening to the rough edges of the court process. The various processes, can provide considerable benefits to those involved, such as:

1. Cost-effectiveness – This is one of the key benefits of NCDR. Court proceedings can be expensive, particularly when disputes become protracted. Generally, NCDR is far less costly, as most methods involve fewer formal procedures and can resolve issues more efficiently.
2. Speed and flexibility – as detailed above, the delays in the court process are considerable. All NCDR options have at the core the concept of addressing matters on a far quicker timetable that fits around the parties.
3. Benefits to family relationships – Adversarial court proceedings can heighten hostility, making it harder for parties to maintain a functional relationship after the dispute. Several of the NCDR options encourage the parties to find solutions and work together.
4. Confidentiality – NCDR allows the parties to discuss sensitive personal and financial matters in a confidential space under prior agreed terms between the parties.
5. Autonomy and control – Rather than having decisions imposed by a Judge, parties can craft agreements that reflect their specific needs and priorities.

7. The FPR Amendment No.2 2023 not only created a mandatory consideration of NCDR but additionally enhanced the courts powers to adjourn proceedings to facilitate NCDR and allows the court the ability to visit cost consequences on a party that fails to reasonably engage in NCDR. The power of the court to ensure the parties address NCDR, is shown by the decision of Mr Nicholas Allen KC sitting as a Deputy High Court Judge in NA v LA [2024] EWFC 113. The Judge stated that the issues in the case were not “unduly legally complex” and ordered that the proceedings were stayed until an attempt at NCDR was made. In X v Y [2024] EWHC 538  the court made clear what it expects of parties, I that “a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate”.

8. It is important to note that NCDR will not, and should not, replace the role of the family court in every case and of course the authority of the court must remain at the centre of the system. There are clearly times when matters such as enforcement issues, particularly complex cases, domestic abuse issue or child protection issues require the family court. It is important that the limitations of NCDR are understood. Despite its growing influence, NCDR is not a universal solution. Some of the key challenges include:
9. Awareness and understanding – despite the growing influence of NCDR there can be limited understanding of what NCDR entails and the differences between the various options. Misconceptions or confusion can lead to ineffective engagement.
10. Power imbalances – in cases involving domestic abuse, coercive control or stark economic inequalities, negotiation processes may place vulnerable parties at risk if not carefully managed. In such contexts, courts may be the safer environment, and exemptions to MIAMs still reflect this reality.
11. Uneven uptake – some processes like arbitration and collaborative law, while valuable, have lower uptake compared with mediation. There are several reasons for this such as the higher costs, practitioner availability and public awareness.
12. Need for professional standards – with the growth of NCDR comes the imperative of strong professional standards, accreditation and training to ensure ethical, fair and effective practice.

9. In addition to these challenges, it is worth noting that the future for the family law field is an ever changing, with the increasing use of artificial intelligence. In particular, large language artificial intelligence offers quick, low cost and readily accessible advice. The quality of this various and carries significant risk to the user, but these are risks that people will take when they feel they are faced with limited other options. NCDR and the various possibilities with this process can, and perhaps should be seen, as the other option. It can offer a bridge between the lengthy court process and non-specialist advice.

10. What should not be forgotten is the potential impact of NCDR and how this reshapes the experience of separating couples, parents in dispute, and legal professionals alike. The growing influence of NCDR in the family law space represents not just an administrative shift, but perhaps a more profound philosophical one. It is persistent pursuit of constructive resolution for families navigating some of life’s hardest transitions.

Jack Henry, Barrister, Henry Chambers