Justice without judgment: the rise of NCDR – Olivia Longrigg and Christine Abbotts write for ThoughtLeaders4 High Net Worth Divorce Magazine
The 2024 FPR rule changes
The Family Procedure Rules (“FPR”) now explicitly include a broader range of dispute resolution methods under NCDR (“non-court dispute resolution”) including mediation, arbitration, collaborative law and early neutral evaluation (Amendment No.2 Rules 2023, which came into force on 29 April 2024). This expansion aims to encourage parties to resolve disputes outside court, where appropriate, through a wider array of structured processes.
Parties are now required to consider and (where appropriate) engage in NCDR before initiating court proceedings. A stronger emphasis has been placed on MIAMs (mediation information and assessment meetings) as a gateway to NCDR. Courts are expected to scrutinise whether parties have genuinely engaged with MIAMs and considered NCDR options before proceeding with litigation.
The Court also now has clearer powers:
- To direct parties to consider NCDR at various stages of proceedings
- To adjourn proceedings to allow time for NCDR
- To impose cost consequences for unreasonable refusal to engage in NCDR.
Concerns regarding the push towards NCDR
While the 2024 reforms seek to ease pressure on the courts and improve resolution outcomes, some practitioners have raised important concerns.
Hiring a private FDR Judge or arbitrator can be expensive, so there is a risk that lower income parties may be unable to access NCDR options. There is also the risk of power imbalance, or harm to the more vulnerable party, particularly if mediation becomes mandatory. NCDR processes like mediation rely on cooperation and balance; in cases involving coercive control, domestic abuse or significant financial disparity, one party is likely to feel pressured or disadvantaged. Linked to this is the potential misuse of NCDR in creating tactical delays in cases involving coercive control or domestic abuse.
Some also argue that NCDR outcomes lack the legal scrutiny needed to ensure fairness, particularly in cases involving complex assets, non-disclosure or safeguarding concerns.
The current government has pledged not to make mediation mandatory for separating couples, as proposed by the previous government in its March 2023 consultation. Those proposals were met with resistance from the Law Society and Resolution, who warned that mandatory mediation could lead to barriers to access to justice, an undermining of autonomy and, in certain cases involving a history of domestic abuse, could prove unsafe.
Reconciling reform: Why practitioners should embrace NCDR
In recent years, the family justice system has faced mounting challenges, from court backlogs and escalating litigation costs to a societal shift towards more humane and efficient methods of conflict resolution. As clients navigate difficult family breakdowns, the limitations of traditional courtroom battles are becoming glaringly apparent. Early intervention is crucial in keeping families out of protracted proceedings. Whilst not without its challenges, NCDR presents a positive, workable solution for many families.
Reform brings with it an inevitable set of challenges that require careful evaluation. While concerns around access to justice must be carefully examined, NCDR should be viewed as an opportunity to enhance client-focused outcomes. The essential consideration is to engage with the available processes and to identify the most effective path forward for each client’s unique circumstances. To ensure the continued effectiveness of the family courts, practitioners must evolve beyond the traditional knee jerk response of issuing a Form A or C100, and instead embrace NCDR as an integral part of modern family dispute resolution.
It should be borne in mind that private FDRs and arbitration offer high net worth clients privacy, flexibility, and control. Clients can choose their judge, avoid publicity, and resolve matters confidentially at a time and place that suits them—often more quickly and discreetly than through court proceedings.
Court backlogs: A system under strain
One of the most pressing reasons to embed NCDR in our practice is the severe backlog that currently plagues the court system.
According to the National Audit Office, as of December 2024, there were 47,662 outstanding family law cases. Over 4,000 children were involved in proceedings lasting nearly two years or more.
For families, this delay can be devastating and deeply destabilising. Families face extended periods of being in emotional and financial limbo.
NCDR offers a faster alternative. Mediation and collaborative processes often allow clients to reach an agreement within weeks rather than months or years, offering a solution that could alleviate pressure on overwhelmed family courts. If embraced by family judges and practitioners, NCDR has the potential to significantly ease the burden on courts, freeing judicial resources to focus on the most complex and high-risk cases.
Appropriate use of NCDR
NCDR won’t replace the role of the family court in cases where the authority of the court is needed, such as enforcement, jurisdiction, freezing orders or child protection cases, but it offers many families a faster, more compassionate alternative that lessens further trauma.
To protect victims of domestic abuse, practitioners must stay alert to safeguarding concerns and carefully assess whether NCDR is appropriate. Timely, thorough screening is key to ensuring NCDR benefits the right families.
The changing landscape: divorce coaches, self-navigation and AI tools Today, there is growing demand for flexible, modern approaches to separation. Many people now turn to divorce coaches and selfguided platforms for support and settlement, reflecting a shift towards self-determination in resolving family disputes.
AI is reshaping how people approach family breakdown, offering quick, lowcost basic guidance on legal issues and settlements. While AI cannot replace professional advice, its accessibility appeals to those seeking alternatives to lengthy court battles.
This shift raises important questions about the capacity of AI tools to address the complex emotional and legal issues that often arise during family breakdown. While AI can offer rapid responses, it lacks the emotional sensitivity and contextual understanding required for effective conflict resolution. Similarly, divorce coaches, though supportive (particularly in cases where there is a power imbalance), cannot replace quality legal expertise. This is where NCDR processes play a crucial role—offering a structured, skilled, and adaptable approach that bridges the gap between lengthy court proceedings and the often oversimplified and sometimes generic guidance provided by non-specialist sources.
The growing need for NCDR is not just about efficiency or cost; it is about creating a more compassionate system for families. As society looks to move towards more collaborative, less adversarial forms of dispute resolution, the legal profession must step up to the challenge.
The time for change is now
The family justice system is facing a pivotal moment: court delays, escalating litigation costs, and growing public demand for a more empathetic approach to family separation highlight the limitations of traditional litigation in meeting the real needs of families.
Some cases will still require court intervention, and more support is needed for these families. Initiatives like the Pathfinder pilot are a step forward. For many other cases, NCDR offers a faster, more cost-effective, and compassionate alternative.
Practitioners should explore how NCDR can be tailored to meet client needs. In children matters, it offers a less pressured alternative to court, with speed being vital—what seems brief in legal timeframes can be life-changing for a child. For financial cases, NCDR enables constructive negotiation, with tools like mediation privilege encouraging more reasonable offers.
Family judges and lawyers must rise to the challenge of this changing landscape. Embracing NCDR is not merely a matter of convenience; it is a matter of justice.
First published by ThoughtLeaders4 in the High Net Worth Magazine, Divorce Edition, Issue 22.
