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Clients seeking our advice on the financial consequences of a relationship breakdown or a dispute over child arrangements are often, understandably, concerned with keeping costs to a minimum. Non-court dispute resolution (‘NCDR’) can help couples and families achieve this. NCDR is a catch-all phrase for the different methods of resolving contested family matters, often arising from the breakdown of a relationship, without the need for engaging in court proceedings.

Court proceedings are well known to be costly and time-consuming. In family matters, the adversarial nature of the process may also exacerbate conflict between parties and inhibit ongoing relationships, which can be particularly damaging where there are children involved. Furthermore, the courts now expect parties to family matters, both in finance and in relation to disputes about child arrangements, to engage with NCDR before entering court proceedings; they can make orders to such an effect and also may impose cost sanctions where parties unreasonably refuse to engage in NCDR.

This article will consider the traditional challenges inherent to family litigation, summarise the recent reforms in relation to NCDR and family law, provide a summary of the most common types of NCDR and finally detail some of the advantages of utilising NCDR.

Litigation challenges in Family Law

Time and expense

There are now significant delays in the Family Court system, with the number of sitting days in certain cases being reduced. In turn this increases the amount of time it takes for matters to be resolved, leaving families in limbo and unable to move on with their lives. It follows that the cost of contested court proceedings in family matters is increasing. Delay also means there is more scope for additional points of conflict to arise and the consequential additional case management means that legal costs increase.

The expense of court proceedings has also had the effect of increasing the number of individuals participating as litigants in person, i.e. representing themselves throughout the proceedings and in court. This causes further delays, as judges must guide unrepresented parties through complex legal processes.

Emotional toll

Family law disputes by their very nature are emotional. They involve very personal and sensitive issues and the adversarial nature of court proceedings results in significant stress and upset, which can intensify conflict.

The courtroom setting may not be conducive to resolving matters and may be particularly damaging where there are children involved and there is an element of needing the relationship to be relatively cordial, i.e. if the separating couple will be co-parenting.

Transparency and privacy

Following a pilot scheme which was initiated in January 2023, media access to family proceedings has increased. From January 2025, the reporting provisions allowing anonymised reporting by accredited journalists were extended to all family courts. While this promotes transparency and accountability, it does also raise concerns for parties seeking confidentiality, particularly in high-profile matters and where there are children involved.

Cross-border disputes

International divorce, child relocation and custody battles which require navigating multiple legal systems are increasing. Cross-border disputes raise their own set of issues, which are outside the scope of this article, but ultimately may mean families face uncertainty as to which country’s laws apply in relation to their dispute. This exacerbates other challenges arising in family court proceedings; the added complexity results in additional time and expense, and is more likely to increase the emotional toll on the parties involved.

Recent reforms in NCDR and Family Law

One of the most significant changes in the approach to NCDR in family law is the amendment to Rule 28.3(7) of the Family Procedure Rules. Courts now have the discretion to depart from the usual ‘no order as to costs’ principle if a party, without good reason, fails to attend non-court dispute resolution. This is reinforced in Practice Direction 3A, which explicitly allows courts to consider a party’s conduct regarding NCDR when deciding on costs. The landmark case Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 confirmed that courts can direct parties to engage in NCDR even if one side objects. These powers extend to civil claims under TOLATA 1996 and the Inheritance Act 1975, signalling a clear policy shift toward collaborative resolution as opposed to litigation.

A recent letter from the President of the Family Division announced reduced sitting days for financial remedy cases in London between October 2025 and March 2026, with priority given to public law children cases. Overflow courts will not operate during this period, meaning fewer hearings will be listed and cancellations may occur at short notice. This creates significant financial risk for parties who have already incurred costs for counsel and preparation for a listed court hearing. As a result, NCDR is increasingly seen as a practical alternative to avoid delays, cancellations, and escalating expenses.

The introduction of mandatory Mediation Information and Assessment Meetings (‘MIAMs’) also plays a key role in promoting early resolution. Parties must attend a MIAM before initiating certain family court applications unless they are exempt due to factors such as domestic abuse or real urgency. Conducted by accredited mediators, MIAMs inform parties about NCDR options; parties complete a form outlining their views on NCDR and the mediator assesses whether the methods are suitable for the couples’ case. This aims to reduce court caseloads and encourage amicable outcomes.

The most common types of NCDR

Mediation

Mediation is a private process by which an independent qualified mediator works with a couple to guide them to a mutually acceptable agreement. A mediator does not take sides or give legal advice. A mediation may take place before or after court proceedings have been issued, so may afford the opportunity to avoid court proceedings entirely. The agreement resulting from a mediation is not legally binding, and relies on the cooperation of both parties until it is converted into a consent order. Thereafter, it is enforceable by the courts.

Arbitration

Arbitration is another private NCDR process. However, unlike mediation, it is final and binding. A decision on the substance of the dispute(s) is made by the arbitrator which is known as the arbitral award, or the determination when the case is a dispute about child arrangements. This award is akin to a court judgment and is intended to be converted into a court order. The arbitrator is as competent as a judge would be to fairly and efficiently resolve the dispute, and the arbitrator will usually continue to deal with the case until its conclusion. The use of arbitration in place of the court process was endorsed in S v S [2014] EWHC 7 (Fam), when an arbitral award was referred to as a ‘single magnetic factor of determinative importance’ that in most cases should be approved by the court.

Private Financial Dispute Resolution (‘pFDR’)

A Financial Dispute Resolution (FDR) hearing is designed to help couples reach a financial settlement without going to a full trial. In court, an FDR judge gives a non-binding indication or early neutral evaluation of what they think a judge’s final decision would be. The aim is to encourage and structure negotiations between the parties. A private FDR offers the same benefits but takes place outside the court process, using a privately appointed judge, who is often a senior barrister or retired judge, for a faster, more flexible, and confidential experience. The process involves sharing financial information, presenting settlement offers, and attending a hearing where the private judge provides guidance and the early neutral evaluation. If an agreement is reached, it is formalised into a consent order and approved by the court, making it legally binding and enforceable.

One lawyer, two clients model

The “One Lawyer, Two Clients” model is a relatively new model which offers separating couples a collaborative way to resolve matters by working with a single lawyer who provides joint legal advice rather than representing either party individually. The goal is to reach an agreed outcome, which is then recorded in a draft order and submitted to the court for approval. Both parties share all relevant information openly, and external experts can be involved if needed. Discussions are confidential and without prejudice, and while the lawyer cannot act for one side in court or if the negotiations break down, they guide both parties toward a fair settlement.

Advantages to using NCDR

Speed and efficiency

Private NCDR procedures allow couples and families to determine their own timetables, meaning steps toward resolution can often begin to be taken within weeks of initial contact. This enables parties to move on with at least some parts of their lives sooner than they would if they entered the courts’ congested timetable.

Cost-effectiveness

Although parties will have to bear the upfront costs of NCDR methods, such as for the venue and the adjudicator, as matters are more likely to be resolved quickly it means that NCDR options can be more cost effective. Protracted court proceedings can leave scope for additional matters to come into dispute and the adversarial nature makes matters less likely to settle.

Tailored solutions

Parties engaging in NCDR will have a greater degree of autonomy over the process and the outcome. Mediation agreements and arbitral awards and determinations can be tailored to reflect the specific wishes of the parties and include agreements reached between the parties outside the process itself.

Privacy and confidentiality

Parties will also have complete privacy and confidentiality, which may be particularly important where there are children involved or where there is scope for matters to become high profile.

Preservation of relationships

NCDR methods are far less adversarial in nature than traditional court based family law litigation, and therefore can minimise conflict and aid maintenance of an ongoing relationship. This is particularly important in cases where there are children involved.

Reduced emotional toll

All of the above have the effect of reducing the emotional strain family proceedings can inflict on families. There is less financial pressure, matters are often not protracted and NCDR focuses on reducing conflict.

However, NCDR will not be appropriate in all cases, particularly where there has been emotional or physical abuse or coercion, or there is significant disparity between the parties. It is also generally reliant on the honesty and cooperation of both parties, which is important as parties will bear the additional cost of the mediator/arbitrator/private judge.

At Sinclair Gibson, our family department is well versed in advising clients in relation to the most appropriate form of NCDR and guiding them through the process. Please contact Kathryn.Peat@sinclairgibson.com, Xanthy.Papageorgiu@sinclairgibson.com, or Lauren.Brolly@sinclairgibson.com if you wish discuss any matters or talk about how we can help.