“Resolution is not the end of a story, but the beginning of a new chapter.”- Anonymous
Welcome to the Non Court Dispute Resolution Edition of the HNW Divorce Magazine, Issue 22. In this Edition we delve into the evolving landscape of NCDR (Non-Court Dispute Resolution), offering insights into its various forms, guidance on selecting the most suitable pFDR evaluator, and practical advice tailored for clients navigating high-net-worth divorce proceedings. Additionally, we have included our HNW Divorce Wordsearch, fill in to redeem a 15% discount to one of our HNW Divorce events.
The second and final day of The International HNW Divorce & Children Summit in Cascais concluded this afternoon with a farewell luncheon following a morning of insightful, cross-disciplinary discussion.
Set once again in the stunning surroundings of the Grande Real Villa Itália Hotel, today’s sessions focused on critical intersections between international family law, trusts, immigration, and child-related proceedings.
We extend our sincere thanks to our speakers, delegates, and partners including; Hall Brown Family Law, Birketts LLP, Maltin PR and Turcan Connell for making this summit an enriching and collaborative experience. We are grateful to our Co-Chairs for their leadership and to all who contributed to two exceptional days of dialogue and connection
THE 3RD ANNUAL HNW DIVORCE NEXT GEN SUMMIT
The 3rd Annual HNW Divorce Next Gen Summit commenced with a series of enriching morning sessions and concluded with a series of exceptional and truly thought-provoking sessions in the afternoon, led by our esteemed panel of speakers. We ended the evening on a celebratory note by extending our special thanks to Maltin PR for helping facilitate our drinks reception.
We would like to once again extend a huge thank you to our amazing co-chairs, Jennifer Dickson and Max Turnell, as well as our event partners Birketts LLP, EY, Evelyn Partners, Pump Court Chambers, The Soke, Seddons GSC, 7IM and Maltin PR, for all their amazing support! We are looking forward to welcoming you all back next year for the 4th annual summit!
THE 2ND ANNUAL PRACTITIONER’S FORUM
We were delighted to welcome the HNW Divorce and Private Client communities to the 2nd Annual Practitioner’s Forum on Trusts in Divorce, which took place at The Clermont, Charing Cross! Many thanks to our co-chairs, Abby Buckland and Jessica Henson, for their opening remarks, followed by a series of enriching sessions. We ended the evening on a celebratory note and would like to extend our special thanks to Nedbank Private Wealth, for helping facilitate our drinks reception!
RESOLUTION TOGETHER
Authored by: Henry Hood (Senior Partner) - Hunters Law
The requirement to have lawyers on both sides on divorce has long been the source of frustration for many clients. The introduction of Resolution Together (RT) in 2022 gives the profession the means, in the right cases, to address this frustration. At Hunters we have been doing this work since 2023 and presently three of us in the department undertake it.
The launch of, and initial training in, RT was the end of a painstaking process undertaken by Resolution to build a robust scheme which has persuaded the SRA, CILEX, and the Bar that such a scheme was possible within existing regulatory constraints.
The concerns expressed by the SRA reflect the instinctive reaction of many lawyers at the thought of “a scheme whereby separating couples will be able to retain one legal professional to advise and
assist them in reaching an informed and agreed outcome”, which is how RT is defined.
How could one solicitor possibly act for both? This remains the concern for many firms, and particularly their COLPs, and, anecdotally, some PI insurers, although in our case, our undertaking such work was agreed to virtually without discussion, perhaps due to the precautions I describe below.
Those undertaking RT work have no regulatory dispensation. As Angela LakeCarroll, one of the pioneers of RT, was at pains to stress in my training, we have to work “within regulation”. Accordingly, under the SRA code, we must both act in the best interests of each client and not act “for a client in a matter where that client has an interest adverse to the interest of another current … client”.
Those who crafted RT were able to show the SRA that its Code1 in relation to Conflicts of Interest allowed a solicitor to accept retainers from both separating spouses where:
• Each had a substantially common interest in relation to the matter
• Both have given informed consent to the solicitor acting; and
• The solicitor is satisfied it is reasonable to act for both.
In essence, RT is based on the understanding that a divorcing couple may have a common interest in reaching a fair and amicable resolution of the issues arising from their separation. That they initially have differing views on some of the issues is not, of itself, a conflict of interest where both are open to hearing the other’s perspective and willing to make compromises. If it becomes clear that there is a fundamental disagreement or difference of opinion which cannot be worked through using the various impasse techniques available to us, then a conflict will have arisen and RT must be brought to an end, with guidance given to each party on alternative ways forward.
Three tools are essential in the process by which an RT case is onboarded: an in-depth separate meeting with each client; a checklist of issues to cover with clients and on which the practitioner must have satisfied him or herself; and a comprehensive retainer letter. I will take each in turn.
questions to address in considering whether RT would be in each client’s best interests. For the critical individual meetings, our checklist includes a link to Resolution’s Domestic Abuse screening questions and reminds us to seek full information on their individual circumstances, the aims each has from the process and confirmation that consent exists for a joint retainer. It then lists what we need to have satisfied ourselves about if we are to undertake the case on an RT basis. Our internal procedures require a note to be made of our conclusions, which should be reviewed by one of the other RT practitioners in the department. In training, we were told that if we screen carefully, RT should succeed – and we have found that this is borne out, as settlement has been agreed in all the cases we have taken on to date.
Before starting RT, it is necessary to have a one-on-one meeting with each client. You may have already had a brief joint conversation to explain what RT is, and the individual meetings are designed both to check whether each genuinely wishes to use RT and, separately, whether it is in their best interests to use it rather than one of the many alternative approaches now available. In this regard Resolution strongly recommends that anyone undertaking RT is trained in recognising domestic abuse and coercive control because its existence in a relationship is likely to preclude its use entirely.
We facilitate this initial stage by use of a comprehensive checklist developed to ensure that we explain all the essential aspects of RT, address all relevant circumstances, and which includes
Our approach (I know other firms do things differently) is to sign the full retainer letter only after the individual meetings have taken place and when a positive assessment has been made. This can of course be several hours into the process, which we cover with a fixed fee retainer for the initial individual meetings. Whilst using two retainer letters may not be the most streamlined approach, it avoids having to provide for those cases not suitable for RT. We are also better placed to provide a costs estimate after the initial meetings.
The full retainer letter makes clear that all information will be shared, for the clients to confirm their free wish to enter a single retainer which they consider to be in their best interests, to acknowledge their ability to seek separate advice whenever they wish, for the practitioner to confirm that they think it reasonable to act for both clients , that this will be kept under continual review and that if that view changes, the retainer will be terminated. The retainer letter will also make clear that, in that event, the practitioner cannot take on any role for either client individually.
And then the work begins in earnest, conducted in the main in joint meetings and follows a predictable course, involving financial disclosure, together with the instruction of experts as necessary, followed by legal advice on the likely range of outcomes and on any proposals the parties have tentatively agreed between themselves. The advice given is legal and pragmatic; unlike when acting for a single client there is no need for strategic advice. We have found that where such advice is known to be very much in one party’s favour, it can be easier to deliver that in a one-to-one meeting, so long as the same advice is given to each. When an outcome has been decided upon, there is a mandatory 14-day cooling off period, when either party can consult elsewhere, and as a further discipline any agreement reached is reviewed by one of the other RT practitioners just in case one has ceased to see the wood for the trees.
Resolution Together represents a significant evolution in how we, as family lawyers, can support separating couples—offering a collaborative, transparent, and efficient alternative to the traditional adversarial model.
While it demands careful screening, rigorous adherence to regulatory boundaries, and a high level of professional judgment, our experience at Hunters has shown that, when used appropriately, RT can lead to constructive outcomes that genuinely serve the best interests of both clients. As the profession continues to embrace this model, we expect to see more firms recognising its potential to transform the divorce process into one that is less combative and more focused on resolution.
Tackling tricky legal questions, complex transactions and difficult conversations for over 300 years.
With confidence. With consideration. With care.
www.hunterslaw.com
What Do You See As The Most Important Thing About Your Job?
I Am Very Conscious That Mediation Is A Huge Opportunity For Any Family In Crisis To Take A Leap Forward In Their Lives In A More Positive Way That They Thought Was Possible (Though The Process Might Be Very Difficult To Begin With). To Give That The Best Chances Of Success, I Think That The Most Important Thing Me For Me To Do Is To Help My Clients Feel Heard, By Me But Also By One Another, Whilst At The Same Injecting Reality In A Compassionate Way. People Are Ultimately Resilient, And As Long As They Feel That Someone Has Listened To And Understood Their Point Of View, They Want To Resolve Matters And Move On.
Who Has Been Your Biggest Role Model In The Industry?
Mr Justice Harrison Was My Pupil Supervisor Before Taking Silk And Then Being Appointed To The High Court Bench. He Taught Me To Keep The Advocacy For The Court Room, To Give Very Realistic Advice And To Remain Calm When Faced With The Most Stressful Situations. That Stood Me In Great Stead For My Court Practice And Now In My Practice As A Mediator.
Imagine You No Longer Have To Work. How Would You Spend Your Weekdays?
I Did Actually Spend Several Parts Of My Life “Not Working”, After I Had Each Of My Young Children. What I Discovered Is That “Not
60 SECONDS WITH... SAMANTHA RIDLEY BARRISTER
Working” With Three Children Just Means A Very Different Kind Of Work, With No Start Or End Time To The Day! I Love Cooking, Exercise And Being With My Friends And Family, So Lots Of That, But Ultimately I’D Look For Other Challenges To Keep Me Busy!
What Is One Important Skill That You Think Everyone Should Have?
The Ability To See Things From Another Person’S Perspective. We Might Not Always Agree With Others, But If We Could All Try To Understand Where Others Are Coming From, The World Would Be A Better Place, Especially In The Current Climate.
What Is The Best Film Of All Time?
Grease. I Must Have Watched It 1000 Times As A Child And Could Still Narrate The Entire Film As Sandy With My Younger Sister Forced To Be Danny.
If You Had To Sing Karaoke Right Now, Which Song Would You Pick?
I Love Joining In A Group Karaoke, But Being Put Alone On The Microphone Is My Worst Nightmare. I Sing Like A Strangled Cat. When Forced To (Because Barristers Love A Bit Of Karaoke!), I Sing Johnny B. Goode Because There Are Few Lyrics, It’S Very Low In Tone And Everyone Joins In.
What Is The Most Significant Trend In Your Practice Today?
People Coming To Mediation To “Just” Get A Form Signed For
Court, Rather Than Wanting To Fully Engage. More Often Than Not Though In My Experience, They Are Pleasantly Surprised By What Mediation And Other Forms Of NCDR Can Offer Them And They Become More Willing To Give It A Go.
What Has Been The Best Piece Of Advice You Have Been Given In Your Career?
Not To Try To Emulate Anyone, To Just Be Me. We All Steal Little Habits From Others That We Think Are A Good Idea, But Ultimately You Have To Be Yourself For People To Believe You Are Sincere, Trustworthy And Good At What You Do. Where Has Been Your Favourite Holiday Destination And Why?
Crete. Greece Is Beautiful, Not Overly Touristic Everywhere, The Food Is Amazing, And We Went There On Honeymoon, So It Was A Very Happy Time.
What Is Something You Think Everyone Should Do At Least Once In Their Lives?
Take Some Time Out Of Their Careers/Education And Go Travelling. There’S Nothing Better To Open The Mind Than World Travel.
CAN NON-COURT DISPUTE RESOLUTION PROCESSES
EMPOWER VICTIMS IN HIGH NET WORTH DIVORCES?
by: Claudia
Introduction
The findings of Resolution’s report on domestic abuse reaffirmed what we, and the victims and survivors1 we advise, have long experienced; the long-term impact of domestic abuse is not sufficiently accounted for in financial remedy proceedings2. Whilst this is alarming in the context of recent and bleak national data -
around 1 in 10 people (1 in 8 women) in England and Wales were victims of sexual assault, domestic abuse or stalking in the year up to March 20253
- greater awareness of the impact of domestic abuse among legal professionals, including the judiciary, has led to greater willingness to consider bespoke processes that safeguard and empower the vulnerable. This article considers to what extent wealthy individuals can safely and
positively engage in non-court dispute resolution (“NCDR”) that enables a fair and dignified outcome for all.
Challenges With The Present Court Approach
The recent judgment in N v J [2024] EWFC 1844 considered whether domestic abuse meets the long established high threshold of s.25(2) (g) conduct and whether it should be taken into account in determining a financial settlement. The court concluded that increased awareness about the pernicious effects of domestic abuse does not lower the ‘obvious and gross’ hurdle5 to be able to meet the bar for conduct, and confirmed that conduct pleaded successfully
would nonetheless need to show a direct financial consequence which makes a difference to the financial outcome. Take, for instance, A v R [2024] EWFC 218 (B)6 wherein the wife made multiple specific conduct claims including that the husband had spied on her using cameras, accessed privileged information between her and her solicitors, deleted evidence, and controlled her throughout the relationship such that it forced her into early retirement. The court decided that even if those claims had been proven they would not meet the high threshold – and in any event the court was able to reach a fair distribution of the assets so did not need to take conduct into account. The law in this area is well established and not at all comforting to victims and survivors of abuse.
In addition, litigation by its very nature is adversarial and can echo (if not reinforce) the power dynamics of an abusive relationship. It can also aggravate trauma and the process can be co-opted by an abuser to continue their control over their victim. This is particularly pervasive if the abuse
1 This article purposely refers to both victims and survivors recognising that the recovery from abuse is an individual journey. The occurrence of post separation abuse, some of which is unknowingly aided by the legal system, means many individuals who experience abuse, will do so after the end of the relationship and remain victims of abuse for some time, despite the relationship having formally ended.
2 The Resolution Report into Domestic Abuse in Financial Remedy Proceedings, October 2024. The report states that around 80% of family justice professionals believe that the long-term impact of domestic abuse is not sufficiently accounted for in financial remedy proceedings
3 One in eight women assaulted, abused or stalked,
includes economic abuse and the victim retains few assets in their sole name. Litigation can spiral and become extremely lengthy, the delay suiting the alleged perpetrator. Litigation can include applications for interim payments and legal costs orders whilst matters are being negotiated; applications that prevent the alleged perpetrator from dissipating assets and where relevant, applications relating to children. In the meantime, whilst the alleged perpetrator holds the purse strings, they can limit wealthy victims and survivors’ access to funds in an attempt to alter their status in society and/ or break down their support networks to abuse and isolate them further. Even once court orders are finalised, implementation of the agreement or appeals create another opportunity to abuse. Such litigation can overwhelm victims, create fear, and pressurise the victim to accept a limited settlement or even return to the alleged perpetrator.
NCDR As An Alternative?
The court is required to consider, at every stage in proceedings, whether NCDR is appropriate9. As professionals this gives us the opportunity to advocate for safe alternatives to the blunt instrument of court outlined above.
Non-court options can offer a process that ensures the abuse is meaningfully acknowledged: even if the law won’t change soon, the process around it can.
the strained court system), with emerging mechanisms to swiftly convert awards into enforceable court orders, helping mitigate the risk of post-award obstruction. Faster outcomes also limit satellite litigation relating to economic abuse, and the wider impact of these disputes on wealthy victims and survivors.
What Are Courts Doing?
The introduction of participation directions to allow vulnerable parties (including specifically where there are concerns around domestic abuse)7 to use screens in court, or give evidence by video link, is a step towards recognising and reducing the potentially retraumatising process inherent in the court room. In practice, however, this will depend on the set up of the court room and facilities – for instance, the court room itself could be perfectly well set up, but the security queue leading up to the building may require the parties to stand in the same line.
The transparency pilot8 speaks to a heightened commitment to publishing cases, leading to, it is hoped, greater accountability and deterrence of the worst behaviours. However, this could add an extra layer of trauma to survivors in making public the details of their abuse, particularly for high profile and/or wealthy individuals in small circles.
So, if the court’s own solutions don’t fit the bill, what does?
Mediation can provide sufficient safeguards that make it a viable, or even an empowering option. Mediators must be trusted to determine whether there may be room for creative planning that would make a safe space for resolution. Such planning can include shuttle mediation and staggering arrival times to limit or even eliminate contact between the parties. The process can take place in calm and pleasant surroundings, with regular breaks. Consideration should be given, too, to lawyer-supported mediation, which can address power imbalances. Victims and survivors are also able to call on additional support from an IDVA10, or even a specialist counsellor, to attend mediation with them. The Resolution report notes that some abusers agree to mediate but will not allow lawyers in the session, under the guise of costs-saving when perhaps it is to preserve an imbalance.
Of course, mediation is not a panacea and will not always be appropriate. Further, it is voluntary. Its outcomes are non-binding and rely on the mediator’s ability to build an effective dialogue with both parties - abusers may see it as a ‘soft’ option.
Arbitration presents a compelling alternative to court for victims and survivors due to the privacy and the control it affords. Discretion is valuable for high profile and wealthy survivors who fear reputational harm or retraumatisation through public exposure. The ability to select an arbitrator with specific expertise or sensitivity to domestic abuse offers reassurance that the court system cannot guarantee.
As with mediation, arbitration allows for flexibility and bespoke arrangements that can accommodate the survivor’s vulnerabilities. Adaptations can go beyond participation directions and can be built into the process from the outset, fostering a safer, more empowering environment for the survivor. Arbitration can deliver faster outcomes (particularly as against
However, arbitration cannot proceed without mutual consent. Arbitration is also bound by the same legal framework as the courts, and the s.25(2)(g) conduct threshold. Nonetheless, arbitrators may include narrative elements in their awards that validate the survivor’s experience, even if the financial division remains unaffected. And the combination of speed, privacy and certainty is highly beneficial to wealthy victims and survivors when compared to mediation or court.
Conclusion
The landscape of financial disputes involving domestic abuse is evolving, and NCDR can offer significant advantages over traditional litigation. Non-court options provide flexibility, privacy, and opportunities for empowerment that are often missing from the court process. By tailoring procedures to the needs of survivors and being alive to and actively addressing power imbalances, professionals can create environments where safety and dignity are prioritised.
However, we must recognise the limitations of NCDR. Voluntary participation cannot be presumed and safeguards are not infallible. Outcomes will still be influenced by the constraints of the flawed legal framework (another article, perhaps. For NCDR to serve victims and survivors effectively, ongoing vigilance and creative thinking are indispensable. By embracing innovation and sensitivity, practitioners can drive meaningful change and ensure survivors have access to options that are safer and more responsive to their lived realities.
Arbitration - paying to have a binding decision made – even though the parties may not agree with the outcome.
Whilst private FDR’s remain in vogue with some practitioners, they can only provide an indication/reality checkwhich in turn may lead to an agreed resolution – but ultimately no binding outcome until an order is agreed by the parties and submitted to the court to consider and hopefully be endorsed.
Arbitration is a form of NCDR that all practitioners should be considering: (i) cutting the queue for court (thereby reducing wait times), (ii) choosing the date for the matter to be heard, the
venue, the tribunal; (iii) being assured of privacy (in financial cases) and (iv) knowing that the arbitrator will have the luxury of time when reading the papers and hearing the case, as well as writing their decision, will surely be particularly attractive to HNW/famous clients.
In contrast the situation in proceedings being heard in the family courts in London is currently dire (and only getting worse).
In December 2024 in London, private children cases were taking an average of 100 weeks to conclude (whilst in Wales it was 18 weeks).
Section 7 reports are currently taking 23 weeks to prepare.
The Benefits of Arbitration
In summary arbitration offers:
• Choice of decision maker
• Efficiency
• Flexibility
• Continuity
• Privacy
• Speed
Arbitration Schemes and Arbitrators
Institute of Family Law Arbitrators (“IFLA”) provide two family law arbitration schemes:
The Financial Scheme under which disputes of a financial or property nature with a family law background in England and Wales may be resolved by arbitration.
The Children Scheme under which disputes concerning the exercise of parental responsibility and other private law issues about the welfare of children in England and Wales may be resolved by arbitration.
To become an arbitrator under either scheme, the candidate must qualify and maintain membership of the Chartered Institute of Arbitrators and, concurrently, be a member of the relevant panel of arbitrators which are managed by Resolution on behalf of IFLA.
The Financial and Children schemes require practitioners to have a certain (high) number of hours of direct experience in that area for at least the ten years preceding their application. The training is rigorous and the assessment consists of writing a determination (children) or award (financial) – a judgement on a fictitious case. The marking of this work is name blind and the feedback detailed and individual.
Some issues will exclude the case from arbitration. For example, safeguarding issues may mean that the case may not be arbitrated under the Children Scheme.
A further meeting (akin to a directions hearing) will follow and then a hearing.
Some matters may be arbitrated just on paper.
Parties may decide to arbitrate the finances and children before the same arbitrator and these may be heard one day after the other – particularly beneficial when there are interlinked matters such as internal relocation applications.
The children scheme covers internal and international relocation (except to non-Hague convention countries) and this may assist HNW clients with an international background working for global entities. Children arbitration can be used when dealing with matters where there are time critical elements such as a choice of school or relocation.
The financial scheme will deliver a resolution swiftly and allow parties to move on even if they each feel badly done by (as many do post-divorce). If particular business interests are a part of the litigation an arbitrator may be selected who has experience of that sector. Managing when experts can give evidence may be so much easier when not subject to the unpredictability of the court listing service.
Rachel Frost-Smith is a Legal Director at Birketts LLP based in London and Cambridge. She is a Member of the Children Panel of Arbitrators of IFLA, a Resolution Accredited Specialist in Private Law Children and Private Law Children Advocacy and a SolicitorAdvocate (Higher Courts Civil Proceedings)
In practice
Clients may choose to have all issues arbitrated, or simply those issues where they have not been able to agree (this isn’t strictly possible where cases are litigated through to trial). The decision may be appealed in the same way that a decision made by a judge can be.
Clients can either choose an arbitrator themselves or ask IFLA to put one forward. The arbitrator will hold a pre-commitment meeting (usually just with the lawyers) and assess whether the matter is suitable for arbitration.
Conclusion
Instead of cases lingering and with that the parties continuing to be stuck (with the costs clock still running) and unable to move on, arbitration provides a swift, efficient method of closure. It is difficult to see why more parties are not resolving their cases in this way.
What Is One Work Related Goal You Would Like To Achieve In The Next Five Years?
Making Sure That AI Is Embraced In A Way That Adds True Value To Our Clients While Also Making Sure That Junior Lawyers Continue To Appreciate The Human Aspect Of Being A Family Lawyer. We Should Not Be Afraid Of Technology But We Need To Step Back And Make Sure That We Are Supporting The Next Generation In Developing The Holistic Skills Needed To Take A Client Through What Is Often One Of The Darkest Times In Their Lives To A Positive New Beginning.
What Cause Are You Passionate About?
The Importance Of Community And How If You Invest In It That Pays Dividends For The Future. That Will Be Different For Everyone At Different Stages Of Their Life E G The Value Of A Strong School Community In A Challenged Education System, Social Groups For The Elderly So That They Don’T Feel Isolated. Contributing To A Community, Even In The Simplest Ways Is Hugely Rewarding And Opens Up New Relationships And Experiences.
What Does The Perfect Weekend Look Like?
Sleeping Past 6am (Every Parents Dream Surely?!), Waking Up In The Calm Of The Countryside And Then A Day Of Clambering Through Fields With The Family Before Collapsing On A Sofa In A Pub To Enjoy A G&T And A Steak. Bliss.
60 SECONDS WITH... CLAIRE YORKE PARTNER AND MEDIATOR MISHCON DE REYA
What Has Been The Best Piece Of Advice You Have Been Given In Your Career?
In My Mediation Career – To Always Remember That It Is The Client’S Process. One Of The Hardest Things As A Solicitor Mediator Is The Temptation To Give Advice, To Tell People What Is The Right Outcome. Instead You Have To Lean Into The Fact That The Clients May Have A Better Sense Of What Will Work For Them – Your Job Is To Help Them Explore What Their Ideas Might Look Like, Stress Test Them And Make Sure That Have Looked At The Pros And Cons Before They Leap.
What Is The Best Film Of All Time?
When Harry Met Sally – A Classic.
What Do You See As The Most Rewarding Thing About Your Job?
The Privilege Of Being Able To Help People Through What Is Often One Of The Darkest Periods Of Their Lives.
How Do You Deal With Stress In Your Work Life?
Be Present In The Task You’Re Doing – Focus, Give It 100% And Then Move To The Next. Not Only Do You Give Your All To The Task/ Problem, But It Helps Keep Boundaries.
What Is One Important Skill That You Think Everyone Should Have?
Knowing How To Listen To Someone To Understand Them Rather Than Listening To Answer
What They’Ve Said. It’S So Easy To Have A Conversation Where You Are Thinking About What Advice To Give A Friend Or Sibling About The Situation They’Re Discussing Or To Share A Story About How Something Similar Happened To You. That Comes From A Place Of Caring And Empathy, However Sometimes People Don’T Need An Answer Or Another Viewpoint, They Just Need You To Hear Them And Understand How They Feel. Sitting In The Silence While They Talk Can Be The Best Support In That Moment.
What Book Do You Think Everyone Should Read, And Why?
One Of The Many Julia Donaldson Masterpieces – I Have Just Read The Gruffalo With My Youngest And While The Characters Are Great Fun For Him, The Message About The Power Of Intelligence, Imagination And Bravery Over Intimidating Physical Strength Really Lands For Me.
What’S Your Go To Relaxing Activities To Destress After A Long Day At Work?
Reformer Pilates To Try And Slow The Impact Of Stress On An Aging Body And Sitting With My Sausage Dog Frank Who Is In My View The Answer To Every Other Stress In Life
20 November 2025 | Hilton London Tower Bridge, London
Trusts in Divorce: The 3rd Annual Practitioner’s Forum
10 February 2026 | The Clermont, Charring Cross, London
HNW Divorce Circle
5 - 6 March 2026 | Royal Berkshire Hotel, Ascot, UK
The 4th Annual HNW Divorce Next Gen Summit
12 March 2026 | Central London
SUPPORTING NEURODIVERGENT CLIENTS WITHIN NCDR
Neurodiversity and all its individual diagnoses was first recognised in the late 1990s. However, it has in recent years received greater prominence in all parts of society. The Family Justice system is of course a mirror to our society at large and so in the same way, we as Family law professionals need a greater knowledge of how best to support our neurodivergent clients. By providing the right support, we ensure that our neurodivergent clients can achieve the same outcomes as neurotypical clients in separation and divorce.
It is however, an umbrella term and some of the most common types of neurodiversity are usually referred to using the following terms:
• Attention Deficit Hyperactivity Disorder (ADHD)
• Autistic Spectrum Condition (ASC) otherwise known as Autistic Spectrum Disorder (ASD)
• Dyscalculia
• Dysgraphia
• Dyslexia
• Dyspraxia
• Tourette’s Syndrome
All these individual diagnoses bring their own particular challengesneurodivergence is unique.
The Basics
Neurodivergence in simple terms means that a person will process information, think, learn and feel differently to people who are not neurodivergent.
It is estimated that around 20% of the population is neurodivergent, many of whom are undiagnosed.
Neurodiversity in the Court System
Accessing the Family Court system as a neurodivergent person can be daunting, as it is not designed to meet or understand your particular needs. The building, lighting, timetabling, paperwork, the expectations around behaviour in court, giving quick instructions and absorbing written or oral information at speed can all mean that a neurodivergent person is at an unfair disadvantage in a court process. In recognition of this, a committed group of Family Lawyers launched FLANC (Family Law Advice for Neurodivergent Clients) in 2024 to
Authored by: Elizabeth Fletcher (Family Solicitor & Director) - FLiP
support the neurodivergent community to gain equal access to justice by addressing barriers to participation in family court proceedings. FLANC has been instrumental in changing the way the profession supports neurodivergent people going through litigation. Their work culminated in the publication of the Family Justice Council Guidance on Neurodiversity in the Family Justice System for Practitioners in January 2025, which can be found here
Neurodiversity in NCDR
It is estimated that there is a higher percentage of neurodivergent people in the family court system than in the general population. The reasons for this are complex and we must not oversimplify, but clearly this raises the question of why more neurodivergent people aren’t able to resolve their family disputes out of the court process? Is this sector of society managing less frequently to engage in the processes that help to keep people out of court? If so, why? Do NCDR professionals need to do better?
All forms of NCDR have benefits for all clients – whether that is mediation, collaborative law, early neutral evaluation, a private FDR or arbitration. It enables clients to have time and support within a private environment in a timeframe that suits them, supported by solicitors, barristers and mediators to work out bespoke solutions to the family law issues they are facing. It enables clients to have greater control over the timing, outcome and circumstances of their family separation, all of which is done in private. These processes benefit high profile clients particularly given the recently introduced Transparency rules.
The greater flexibility of all NCDR processes means that they are better able to meet individual needs. This flexibility is good for anyone dealing with family separation, but especially for neurodivergent individuals who may face challenges including with verbal communication, processing written material or numerical information and understanding social cues, as well as barriers associated with focus, concentration and the environment.
NCDR can accommodate ways of working that are far better suited to maximising participation for neurodivergent individuals. Of course, better participation leads to better outcomes and more likely a resolution for a client.
How Can We Make NCDR More Successful For Neurodivergent Clients?
As with every client, there is no one size fits all. Professionals need to work with clients to assess what they need and adjust the process to support the best participation possible.
It is with this in mind that a free toolkit has been launched to help all NCDR practitioners better support neurodivergent clients in an NCDR process. The toolkit walks you through a process to:
1. Screen for specific needs to support clients’ participation
2. Identify adjustments that need to be made
3. Propose an Agreement of Process that can be agreed between the parties and relevant professionals.
Screening and Participation Essentials
Screening in a first meeting, or a MIAMS for mediators, is vital. Working out the best way to communicate and give instructions to a client is crucial to good participation and understanding.
The first and simplest question might be to find out if there is a diagnosis and whether your client will share it with you? If so, it will usually include recommendations for support and interventions tailored to the individual’s specific needs and challenges. If there is no diagnosis or you are unable to read it, the FLANC document ‘All About Me’ here is a good place to start learning about your client’s unique characteristics. As with everything, some clients may prefer to write down their preferred ways of communicating, others may prefer to talk it through.
Once you have a clearer picture of your client’s unique characteristics and potential vulnerabilities, the NCDR toolkit walks you through adjustments that might be helpful. These can include changes to lighting, heating, timing of meetings, who is in attendance, how information is communicated, fed back, written down, the roadmap for the NCDR journey, how offers are made and how a process will come to an end.
Agreement of Process
Once screening is completed and any barriers to participation have been identified and adjustments proposed, practitioners will need to agree these with the other party. The toolkit proposes that an Agreement of Process (“AOP”) is signed by the parties and the professionals – committing to conduct the process with the adjustments in place. Once agreed, the AOP can travel through the process with the clients. If it is agreed in mediation and attached to the Agreement to Mediate, then if mediation fails, the AOP can pass to an arbitrator and be attached to the ARB1 without the adjustments being renegotiated.
Is it Worth the Effort?
In short, yes. Supporting clients to participate fully in an NCDR process means that they can take advantage of all the upsides that staying out of court provides. If the rest of society can enjoy the benefits of a bespoke process that listens to and tries hard to meet their needs, there should be no reason why the neurodivergent community cannot enjoy those same benefits.
NCDR Toolkit
The toolkit referred to in this article was produced by FLANC and FLiP in partnership. It can be used by all NCDR professionals to enable neurodivergent clients to gain better access NCDR. It is freely accessible at www.flanctoolkit.org
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FROM LEGAL AID TO LUXURY
THE EVOLUTION OF NONCOURT DISPUTE RESOLUTION
Authored by: Helen Midgley (Partner) - Tees Law
Family Mediation has been available in England and Wales for over 35 years. Originally services were largely provided from charitable funding and grants and, from Legal Aid1, which has historically given Family Mediation (a form of Alternative Dispute Resolution, now called Non Court Dispute Resolution) a reputation of being the ‘budget’ alternative. The service for families who may not have been able to afford legal advice and representation at court.
But this humble impression is arguably out of date. The processes born to meet the needs of families with more modest finances have evolved into something different entirely: time-efficient, private and bespoke paths for those with significant wealth, complex assets and complicated family and financial arrangements.
And as Family Mediation has evolved, so too has the spectrum of NCDR processes. Today, high net worth families turn to Arbitration, Early Neutral
Evaluation, private FDRs or to the One Couple, One Lawyer models or Collaborative Law or a combination of these options – whether outside or alongside the court process.
This development of the ‘NCDR menu’ has not only been driven by economic reasons but, arguably, for the specific advantages NCDR can offer: confidentiality, specialist neutral advisors/experts and timetables of months not years.
retains the confidentiality and privacy for which some families are prepared to and anxious to pay.
High net worth families with assets held in various jurisdiction, within complex trust structures or that are subject to sensitive reputational issues are moving away from the over-burdened court process for the specialist expertise that NCDR can offer.
NCDR can provide the involvement of jointly-instructed valuers, tax experts, and trust specialists, potentially brought into the resolution process from the very beginning, producing authoritative reports for informed settlement discussions.
Unlike the court process, with the ever increasing push for transparency, NCDR
This structural change has also been driven by the decline of Legal Aid for most private family issues: NCDR is now almost entirely privately funded. The NCDR market has therefore been required to adapt to provide for clients who can pay for these services.
Modern NCDR is therefore capable of being engineered as a bespoke set of stages to deliver the right outcomes for families by:
• Maintaining privacy and reputational control
• Providing choice of facilitator or decision-maker
• Ensuring speed and flexibility
• Demanding specialist input.
However, for some practitioners there remains a hesitation about recommending their HNW clients to NCDR. Why does this hesitation persist?
Many practitioners have concerns about the quality of financial disclosure within NCDR or its enforcement powers. For Family Mediation or One Couple, One Lawyer processes, concerns about power imbalance and the lack of binding outcome also remain prevalent.
Unfortunately, too, a ‘business as usual’ mentality also pervades.
So how can practitioners be reassured to that NCDR is suitable for HNW families?
1. “The assets are too complex for NCDR” – by using independent jointly-instructed experts from the beginning both participants can have confidence that complexities are being uncovered and authoritative reports generated to minimise disputes through the negotiation process.
2. “We don’t have the full picture” – NCDR is not ‘court-lite’, the disclosure process need not be any less rigorous or comprehensive than the court process.
3. “We’re not on the same level” –NCDR practitioners must consider potential power imbalances and the ways to mitigate those risks, including recommending that clients retain independent legal advice throughout.
4. “This is not the right jurisdiction” –NCDR can work alongside court processes and contested jurisdiction issues can be determined in the court process before NCDR or NCDR can be used to agree the appropriate jurisdiction.
5. “We’ll never agree” – using NCDR processes such as Arbitration or Med-Arb would ensure binding and enforceable decisions even if agreements cannot be reached.
6. “They wont meet the deadlines” –NCDR can be strictly managed with an agreed timetable and conditions that if deadlines are not met, the family would return to the court process.
Overall NCDR can be extremely good value for money – particularly by saving time – but it is not just about cutting costs. It is a way to bring in ‘private wealth management’ to family separation.
NCDR offers clients a faster, more private and more bespoke process that it better suited to the complexities and realities of their personal and private lives.
For many high net worth families, the question is therefore not whether NCDR is a viable alternative, but whether they can afford not to use NCDR?
The traditional court process, with fixed timetables, increasingly public hearings, and procedural rigidity, is a blunt instrument, attempting to push complex family issues into a one-size-fits-all shape, sometimes magnifying conflict rather than resolving it. By contrast, NCDR offers a curated process tailored to each family’s priorities.
NCDR should be the norm not the exception for separating high net worth families.
NAVIGATING HIGH-CONFLICT MEDIATION CASES
by:
Family mediation is often seen as the domain of amicable separations where trust and communication are the bedrock. However, mediation can still be effective in high-conflict cases given the range of viable alternatives.
High-conflict disputes are most commonly characterised by entrenched positions, emotional volatility, a history of hostility or significant power imbalances. In such cases, there are at least three methods (or a combination of the three methods) that can be adopted:
1. Shuttle mediation;
2. Hybrid mediation; or
3. Lawyer assisted mediation
Understanding HighConflict Mediation
High-conflict mediation typically arises in situations where:
• communication between couples has completely broken down;
• one or both of the participants exhibit antagonistic, controlling, or abusive behaviours;
• there is a history of litigation or court intervention;
• there is a history of substance abuse;
• emotions run high, often clouding judgment and impeding compromise; and
• power dynamics are unequal, making open negotiation unsafe or unproductive
In such cases, the standard face-to-face joint mediation session can become unworkable or even counterproductive.
Traditional mediation assumes that participants are able to negotiate in good faith and feel safe enough to express their interests openly. When these assumptions don’t hold, mediation must be adapted to suit the emotional and interpersonal dynamics at play. With great care and proper safeguarding and screening mediation can still assist in those sorts of situations. This is where shuttle, lawyer assisted and hybrid mediation methods offer clear advantages.
Shuttle Mediation
Shuttle mediation involves the mediator moving back and forth between the clients, who remain in separate rooms (either physically or virtually) throughout the session. This model is particularly effective in high-conflict settings because it:
1. Reduces confrontation - by avoiding direct interaction, shuttle mediation de-escalates tension and prevents potential psychological intimidation or manipulation that can occur in joint sessions. This physical or virtual separation can also be essential in cases involving allegations of abuse, coercion, or harassment.
2. Enables focused communication - the mediator can tailor how information is conveyed, choosing language and tone that is less likely to provoke or inflame. This enables more thoughtful, structured communication.
3. Encourages reflection - the pacing of shuttle mediation gives each participant time to reflect on proposals without feeling pressured or attacked. This “cooling-off” period often helps clarify priorities and opens pathways to agreement.
4. Manages Power Imbalances - in high-conflict cases, one person may dominate or intimidate the other. By separating a couple, shuttle mediation levels the playing field and allows each individual to speak freely.
However, shuttle mediation is not without its challenges. The process can be slower and may limit the fluid exchange of ideas. Additionally, the mediator must work harder to ensure that each participant truly understands the other’s perspective, since communication is indirect. As a result it may be less cost-effective and the mediator must ensure that they are conveying exactly the same message to each participant.
Hybrid Mediation
The unique distinction between hybrid mediation and other forms of mediation is that the mediator can hold confidences. Hybrid mediators are specially trained to manage legally complex or high-emotion cases. Like shuttle mediation, the sessions often occur in separate rooms and with the presence of lawyers.
The concept of holding confidences, where parties can share information privately with the mediator that is not disclosed to the other participant unless explicitly authorised, can be instrumental in high-conflict settings, where trust is low, and full disclosure may not be forthcoming in joint sessions.
Hybrid mediation can accelerate outcomes by ensuring that legal barriers are addressed during the mediation itself, rather than post-agreement. Solicitors present can draft consent orders or financial agreements immediately, often negating the need for further litigation.
Lawyer Assisted Mediation
There is a wide (incorrect) view that the only difference between hybrid mediation and other forms of mediation is that solicitors are present. However, solicitor supported mediation can happen at any time and that does not automatically make it hybrid.
Solicitors will attend mediation sessions with their clients. Their involvement ensures that each participant understands their legal rights and the implications of any proposed settlement.
This approach empowers individuals to make informed decisions, especially in complex matters or where there is high conflict. Solicitors can advise before, during, and after mediation sessions, helping clarify legal sticking points and translating informal agreements into binding court orders if needed.
The Role Of The Mediator
An experienced mediator will also be able to hold boundaries including setting out ground rules for limiting emails between sessions, allowing each client their time to speak and providing clear and focussed agendas.
Whilst high-conflict clients might try and flout the process, it is down the mediator to take command and an experienced mediator will be more than capable of doing so.
Conclusion
High-conflict disputes demand more than goodwill and compromise - they require structure, safety, and expertise. In England, the evolution of mediation has kept pace with this need. Shuttle mediation offers a protective space for negotiation, while hybrid mediation brings legal realism into the room without escalating conflict.
The traditional trajectory for high conflict cases is to enter into the adversarial legal and court process which makes individuals even more entrenched and less aware of the other person’s point of view. It is therefore even more important to give full consideration to mediation in high-conflict cases.
For mediation to reach its full potential in high-conflict cases, professionals must continue developing skills in these models and those participating must be educated about their options. With the right tools, even the most entrenched conflicts can give way to resolution, dignity, and peace. Resolution are running training on Advanced Hybrid Mediation between 4 and 5 November 2025 with places still available.
Choosing The Right Approach
The choice between shuttle, lawyer assisted, hybrid mediation or a combination depends on the nature of the dispute, safety concerns, communication dynamics and urgency of resolution. A competent mediator will assess these during the initial MIAM and adapt their approach accordingly. Increasingly, mediators are trained in multiple models to flexibly tailor sessions to meet the respective couple’s needs.
HOW TO CHOOSE YOUR PFDR EVALUATOR
Authored by: Elissa Da Costa-Waldman (Barrister) -
Given the time it can take to get from a first directions appointment in financial remedy proceedings to a Financial Dispute Resolution Appointment (FDR), it can often be both quicker and cheaper to engage in a private FDR (pFDR). Indeed, the compendium directions provide for this option with some standard directions-
Further Hearing In The Event Of The Court
Directing A Private FDR (pFDR)
70. The in-court FDR process is disapplied. The parties are required to attend a pFDR on [date]. The evaluator at the pFDR hearing shall be [name]. The pFDR date may only be altered by an order of the court (which may be made by consent).
71. If the case does not settle at the pFDR then the parties shall provide an explanation to the next FRC Judge dealing with the case so that the court can be assured that a thorough FDR exercise has taken place. This explanation should not
include reference to any without prejudice positions, but should give the date of the pFDR, the identity of the tribunal, and how long the hearing and negotiations lasted.
Clearly the concept of the pFDR is not only endorsed by the courts but positively welcomed where there is likely to be a long delay in getting to FDR. In addition, it is also recommended that any long gap in the court process should be used as an opportunity to settle. Although both the FDR and pFDR are processes in which the tribunal is prescriptive, the outcome is very much the choice of the parties, leaving them empowered and in charge of the outcome rather than an outcome ordered which is not attractive to either party but usually far less attractive to one.
One of the advantages of the pFDR (and there are many, which would warrant another article) is that the parties choose their evaluator rather than having a judge imposed on them.
However, if the pFDR process is to be productive, cost effective and successful it is important to choose the right evaluator. How does one choose the right one? What constitutes the pool from which one can make an informed choice?
In Civil Cases, for example TOLATA claims, if the parties want to test their settlement proposals, they would engage in an Early Neutral Evaluation known as an ENE. This is the civil version of the FDR in financial remedy proceedings. Consequently, there are a number of retired evaluators who would still be willing to evaluate a case. Current barristers whether leading or juniors are capable of doing this work as are those who sit as arbitrators. Retired judges are an obvious choice but if price is an issue, it may be that an experienced solicitor is the best person for the job, and why not? Many deputy district judges who hear FDRs are solicitors still in practice. Having evaluators who are practicing lawyers is likely to mean that they are up to speed on the law, practice and procedure.
Westgate Chambers
A client’s choice of pFDR evaluator will depend on a number of factors including, knowledge, experience, expertise and cost. Many chambers now have a dedicated NCDR team so it is well worth checking the chambers’ website for NCDR information which should include which members ‘sit’ as pFDR evaluators. Another great source of candidates for the role of pFDR evaluator is the IFLA (Institute of Family Law Arbitrators) website as all qualified family arbitrators will be more than capable of conducting a pFDR.
As well as knowing where to look for a pFDR evaluator, consider what skills the pFDR evaluator/ should have. A potential evaluator should not just be an expert on the legal principles involved in a financial remedy case but also requires the ‘people skills’ necessary to encourage settlement without putting pressure on the parties.
Whilst the pFDR or FDR is not a mediation, mediation skills can be helpful – Mediation in Context (Newman, Jessica Kingsley Publishing (2000) provides 6 qualities for the effective mediator – not necessarily what one is seeking in an evaluator but maybe helpful-
Empathy – the ability to understand the positions of the parties even if the evacuator disagrees – even if an indication does not go a particular party’s way, it will be more palatable if they feel their views have really been listened to and heard.
Patience – waiting for the parties to make decisions at their pace. One of the advantages of the pFDR Evaluator is their availability, which enables them to slow the pace so that the parties do not feel pressurised into making a speedy decision they may regret.
Self-assurance – ability to inspire confidence in the parties, having a plan, a structure. The pFDR already has a structure but it helps in a pFDR to provide a timescale for elements of the day.
Clarity of thought – ability to ask questions and gather relevant information. This demonstrates listening skills and can lead to settlement proposals.
Ingenuity – able to bring in new ideas to resolve issues, something new for the parties to consider. This process often results in the evaluator being able to offer the parties an option/solution which had not occurred to them.
Stamina – ability to keep going, which is an absolute necessity in a pFDR, if it means getting an appropriate deal done.
The American Bar Association publication, Early Neutral Evaluation (Brazil) (2012) suggests parties require their pFDR evaluator to have the following attributes-
• intellectual honesty and moral integrity – one would hope that if the evaluator comes from the categories referred to above, this is a given
• an even temper and the ability to remain calm under pressure and in the face of intense emotions and unbecoming behaviour – it is unfortunate but understandable that sometimes even judges do not behave as well as they might due to the pressures they are under with the volume of work they are expected to undertake. The pFDR evaluator is better able to remain calm having one case to deal with in a day rather than several.
• conscientiousness, diligence and well preparedness – once again, these attributes are more easily maintained when having to consider only one case.
• the ability to be a systematic, careful and circumspect thinker and legal analyst who never rushes to judgment and is always attentive to details – having ‘reading time’ built into the evaluation day because there is only one case to consider enables a much more in depth analysis of a case to be undertaken than with a court based FDR.
• the ability to fully appreciate the ubiquity of uncertainty in life and litigation and to never pretend to be sure how things will play out at trial – there is often a greater emphasis on communicating this to the parties in the pFDR.
• a balanced integration of solidity and humility in manner and thought and show no arrogance, self-infatuation, or condescension – one can only wonder if these characteristics are typical of American judges that they need to be addressed. For most pFDR evaluators, it is about getting the job done for the parties’ benefit.
• the ability to be respectful of others, regardless of their station or background and respectful of differing points of view or lines of reasoning – sadly this should not need to be said.
• the ability to be energetic, engaged and an open listener and learner –
these attributes are crucial for the evaluator to be able to evaluate effectively.
• an awareness of the limitations that their experience imposes on their understanding of dissimilarly situated persons and their circumstances – there is much more emphasis today, over a decade after Brazil’s paper, on diversity such that it is given a lot of attention.
• a keen interest in and sensitivity to others, appreciating the values by which others fix their objectives – having an understanding of the respective parties’ aims is helpful in ascertaining how they can achieve them
• a drive and desire to help, and
• an ability to be well-grounded in the notion that integrity of process and energy of effort are measures of success, not ‘victory’ in persuasion or settlement of the case. The former are indeed the appropriate measure of success, and more energy and effort are available from the evaluator in a pFDR because they are able to give the parties and the process their undivided attention for the entire day.
Ultimately, choosing the right pFDR evaluator will come down to the person with the appropriate level of expertise, experience and personal qualities for the particular case, as well as cost. Fortunately, there is an abundance of such, enabling clients to benefit from being able to choose their tribunal and have their cases dealt with in a more streamlined manner than the courts are currently able to offer.
WHEN THE HEART TRIES AGAIN BUT THE LAW MOVES ON
HK V SS1 AND THE BOUNDARIES OF RECONCILIATION UNDER FPR 7.19(6)(B)
In the post-DDSA 2020 “no-fault” landscape, divorce procedure is simpler, more streamlined, and - for the most part - welcomed by both practitioners and parties. Yet, in the first reported case to test judicial discretion under FPR 7.19(6)(b) on advancing a Conditional Order (formerly termed “Decree Nisi”) more than 12 months old to Final Order, a clear line has been drawn in the sand: wait two years and you’re too late. Pragmatic guidance - or a relic of an era the reforms were meant to leave behind?1
Background
Not one month after no-fault divorce was introduced, on 12 May 2022 the applicant Wife (“Wife”, for ease) applied for divorce. The application was not contested, and she applied for conditional order on 30 September 2022, which was granted on 27 October 2022.
Neither party then applied to advance the divorce to final order, although the Wife could have taken this step at any point from 9 December 2022 (and the respondent three months thereafter).
Behind the scenes, the parties were attempting to reconcile. From March 2023 – June 2024, the parties resumed a relationship and lived together.
However, in June 2024, the relationship started to break down again and the parties moved into separate bedrooms.
In August 2024, the Wife applied for the conditional order to be made final. Upon receipt of that application, DDJ Wilkinson directed that further information in support of the application be filed. The Wife’s solicitors emailed the court, ‘the Applicant instructs that the parties reconciled in March 2023, but the marriage sadly broke down again around 2 months ago.’
The matter was referred to HHJ Simmonds – the National Lead Judge on Divorce - due to the lack of legal or judicial guidance on dealing with reconciliation prior to final order under the new no fault landscape.
The Legal Framework –And The Legal Leap No Fault Divorce
Under FPR Rule 7.9, an applicant may apply at any time after 20 weeks from the date of issue for a conditional order. Pursuant to FPR 7.19, the applicant can then give notice to the court, six weeks after the making of the conditional order, for the order to be made final.
On receiving such notice, the Court will make the conditional order final, subject to satisfying themselves that none of the limited grounds are made out (primarily relating to outstanding applications for appeal or recission of the conditional order)2. Importantly for the purposes of this matter, at Rule 7.19(5), (6) it is recorded that:
(5) Where the notice is received more than 12 months after the making of the conditional order, it must include or be accompanied by an explanation in writing stating why the application has not been made earlier.
(6) Where paragraph (5) applies, the court may—
(a) require the applicant to verify the explanation with a statement of truth; and
(b) make such order on the application as it thinks fit….’3
‘Old Style’ Divorce
In reviewing the judicial discretion at Rule 7.19(6), HHJ Simmonds considered the fuller terms under the old legislative framework at (then) r.7.32 FPR.4 Whilst the fuller ‘explanations’ are not required in the new law, the requirement for a statement and application of judicial discretion remained (a curious, and ultimately unhelpful omission). The contents of the statement required under the old law, also shed light on the nature of the discretion that the judges should apply when considering whether or not to grant the (then) Decree Absolute.
HHJ Simmonds then turned to the case law operating under the old law, making note of dicta of Wood J in Savage v Savage [1982] Fam 100. In that (pretty extreme) case, the parties had reconciled for a period of three and a half years after Decree Nisi. The court refused the application, and the decree was rescinded. Wood J in his Judgment on reconciliation said this at para. 104B:
“There is the period of 12 months referred to in rule 65 of the Matrimonial Causes Rules 1977 to which I have already referred, and the periods of time outlined in section 2 of the Act of 1973 are within that span, thereafter the court has a discretion. It is perhaps surprising that the substantive law does not direct that a decree nisi shall lapse after a given period - possibly two years. This might help to cement any reconciliation which had taken place within that period and to encourage finality where the condition of the marriage was in reality hopeless.”
HHJ Simmonds then turned to the decision of the Court of Appeal in Olga Cazalet v Walid Abu-Zalaf [2023]5 EWCA Civ 1065, where the below is noted at para 55:
“I have adopted the test as phrased in Savage, but the test applies to both elements of the decree nisi, namely the decision that the wife could not reasonably be expected to live with the husband and that the marriage has irretrievably broken down”.
The ‘Logical’ Leap
Leaning on the law surrounding the old legislation, noting that there are circumstances where the Court should not take issue with exercising its discretion to grant a final order,6 the Judge upheld the reasoning in both Savage and Cazalet v Abu-Zalaf [2023] and noted the following:
32. In my judgment any period of reconciliation under two years should be seen as an attempt at reconciliation but not a bar to the Court allowing a final order to be made. This case highlights that parties need time to reflect. They should not feel the pressure of an artificially imposed court timetable. Further in this case if I refuse the Application either party would be able to issue a new divorce application the following day.
33 Any period over two years may amount to evidence that the marriage has not irretrievably broken down and that the reconciliation for such a long period could amount to a material change in circumstances that invalidates the basis upon which the conditional order was made. The Court of course approaches such applications by exercising its discretion and that includes at the final order stage taking into account all the facts known to it. That is a wide discretion but in my judgment parties and those that advise them need some guidance as to how that is likely to be exercised and I hope this provides that”.
By importing a pre-DDSA relic (statutory gloss) into the no-fault landscape, the court has reintroduced the kind of artificial timetable the reforms sought to kill off. What makes 23 months of reconciliation “fine” but 25 months potentially fatal?
There’s also a practical hazard: although HHJ Simmonds was not intending to introduce a hard cut off to final order applications, will parties be able to challenge it on a case-by-case basis (without incurring significant costs for an attended hearing)?
The logic of a two-year timeline in Savage and the reference to unreasonable behaviour in Cazalet v Abu-Zalaf [2023] was obvious – it harkened back to the statutory framework prior to the DDSA regime, when behaviour that is unreasonable to live with and two years’ separation with consent was one of the statutory “facts” proving irretrievable breakdown. In that world, reconciling for that long would genuinely undermine the original application for divorce. But in the no-fault era, those “facts” are gone – and with them, arguably, any real foundation for importing a two-year cut-off into modern discretion. The question should simply be: has anything happened since the conditional order that genuinely calls into question whether the marriage has irretrievably broken down? If the answer is no – and regardless of whether the attempt to reconcile is 15 months or 30 - the final order should follow. Anything more is the court importing arbitrary time limits that Parliament deliberately chose to abandon.
Practical Takeaways (with Caveats)
1. Watch the Clock. If your client is contemplating reconciliation post-conditional order, diarise the two-year mark and advised the client. Even if it’s not law, this case makes it the working presumption.
Arbitrary Calendar?
It’s not hard to see the policy attraction of a time marker and why, perhaps, HHJ Simmonds adopted this approach in the absence of any guidance regarding Rule 7.19. Practitioners like clear lines. Clients like certainty. But the DDSA was meant to unshackle divorce from arbitrary time-based hurdles and instead focus on the parties’ own view of irretrievable breakdown.
2. Paper the Reconciliation. Dates, nature of cohabitation, reasons for delay - all should be recorded. You’ll need them if discretion is challenged.
3. Consider Tactical Rescission. If reconciliation is going brilliantly and heading past two years, better to rescind and start afresh than risk the existing application collapsing.
4
Cazalet v Abu-Zalaf [2023] EWCA Civ 1065 https://www.bailii.org/ew/cases/EWCA/Civ/2023/1065.html
6 E.g. Resolving finances, ill-health, or other family matter – but importantly, where they have not reconciled in these circumstances (para 21 and 22)
PRIVATE FDRS PUTTING CLIENTS FIRST
Authored by: Alexandra Hirst (Senior Associate) - Boodle Hatfield
A Private Financial Dispute Resolution (PFDR) hearing offers a confidential and structured opportunity to settle financial matters without proceeding to a final court hearing. Unlike a courtbased FDR, a private FDR is arranged and paid for by the parties, mirroring a Court-based FDR. The key benefit is flexibility: the parties choose the judge, venue, and timing, and it allows more time than a court-listed FDR. Clients should be given the opportunity to seize on this flexibility to resolve disputes as quickly and efficiently as possible.
Such hearings have become commonplace, and it is easy for practitioners to underestimate that it remains a momentous and potentially daunting occasion for clients. Remembering to address certain - some perhaps obvious and simple practical - points can significantly improve the client’s experience and promote a productive outcome.
What Is a Private FDR?
Clients need to be aware that a PFDR is a voluntary, out-of-court settlement hearing in which a mutually agreedupon specialist (often a retired judge or senior barrister) gives an impartial, non-binding indication as to the likely outcome of the case. This gives both parties a realistic view of what might happen at a final hearing and encourages settlement.
Without Prejudice — What Does It Mean?
It is all too easy to assume the client has understood legal jargon when they have not. They need to understand the without prejudice nature of the day, namely:
• Settlement options can be explored without fear that these offers will be used against them later.
• The judge’s indication is nonbinding and cannot be relied upon in later court proceedings.
• If no agreement is reached, you effectively reset for the final hearing.
This gives everyone the freedom to engage in genuine negotiations, take calculated risks, and speak openly — all in the pursuit of resolution.
Recent cases remind practitioners that nothing which takes place during the FDR (including reference to the behaviours, approach or time of leaving) should be referred to openly following the hearing.
Choosing The Right Judge
Choosing the right FDR judge for the case is vital and clients need to be involved in the decision-making process from the outset rather than it being presented as a fait-accompli; they will need to have confidence in their view if they are to be expected to listen to and act upon their indications. The judge must be:
• Appropriately senior to the barristers acting for each party.
• Have a specialist knowledge in the issues of the case (for example, trusts, nuptial agreements and so on).
• Impartial and trusted by both parties
The client should appreciate that it is not unusual for both sides’ legal teams to agree on a shortlist and then jointly appoint the chosen individual.
Understanding The Role Of Counsel
Unless forewarned, it can be unsettling to clients to learn at short notice that both barristers (and even the judge) might be from the same chambers. This is of course not unusual and does not mean there is any conflict of interest. Clients should be briefed about the fact that chambers are simply professional organisations that house barristers; they operate independently in their individual cases and their own barrister is entirely loyal to them however well they know their opposite number.
Location And Practical Arrangements
Private FDRs are typically held at barristers’ chambers, solicitors’ offices, or other neutral venue. Without wishing to state the obvious, clients need to be clearly informed well in advance of the hearing about:
• The full address of the venue
• Directions (including for public transport or parking)
• Security or access procedures
• Travel time and arrangements
It is all too easy to assume a client knows their way around the inns of Court, for example, when the reality is that most people will not have set foot in such a location and may feel completely at sea amongst everything else that is going on. Clients need to leave adequate time to arrive calmly and prepare. Late arrival can lead to unnecessary stress on an already important day and set the day off on a negative footing.
Most family lawyers will have experience of clients who will not engage with the notion of the hearing taking place in the offices of the solicitors of their spouse. This may be foolhardy when that location may be able to host the day much more comfortably. Insistence that a hearing take place in a 17th century listed building in a heatwave rather a modern air-conditioned office does not make for a happy hearing.
That said, both parties need to feel comfortable and solicitors on both sides need to have an open and realistic conversation about this topic, which feels basic but is important to clients.
What Happens On The Day?
Clients should be briefed on the structure of the day prior to the hearing, including understanding that each “side” and the judge will have their own private room and that everyone will come together in the same room for the hearing and indication elements of the day. The clients should have some authorship over the seating arrangements and usually the room will be set up so that the parties do not have to face each other directly.
The day will almost always commence with meeting with the client, solicitor and barrister to discuss strategy and any new developments. Most judges will (and should) also come and introduce themselves and explain how the day will run. It is also a good idea to show the client the room in which the hearing will take place so they are not seeing it for the first time when they enter the room, full of lawyers and their soon to be ex-spouse.
Clients should be briefed on the order of who will speak and the fact that following submissions the judge will then take some time to consider matters and present their indication, hopefully then triggering the commencement of productive negotiations. The day can last from late morning until the early evening — sometimes longer. The client should be fully aware of this to ensure they have planned suitable childcare, accommodation and have mentally prepared for a demanding day.
Taking Breaks And Basic Self-Care
The FDR day can be long and intense. There may be lengthy periods of waiting, reviewing proposals, or private discussions. The client should be aware that they can and should take breaks at any point if they need and they should be encouraged to step outside, get fresh air and eat. This is fundamental to clear the mind and avoid making hasty decisions; it does not help anyone if a client becomes overwhelmed.
Clients should be encouraged to ask questions and the lawyers should check in with them throughout the day to ensure they have understood each element of the proposals.
If the day has simply become too much, it should be brought to a close with negotiations continuing on another mutually convenient date or in solicitor correspondence.
Appreciating that, in complex cases, negotiations frequently do not get going until around 2pm, practitioners often book the FDR to run over two days from the outset which represents good planning. This should be considered particularly where clients have travelled long distances or even from overseas to attend. It is also worth going into the day with the further availability of all involved in case a subsequent roundtable meeting needs to be arranged to continue settlement discussions. Parties should not give up on the progress made.
Final Thoughts
A private FDR is a powerful opportunity to resolve financial disputes constructively and confidentially. While the day can be emotionally charged, careful preparation, engendering trust in the professionals, and a clear understanding of the process can make a significant difference.
By keeping these points in mind, you will be better able to equip your client to navigate the day with confidence — and hopefully, walk away with a resolution that brings closure and clarity.
SUGGESTED TOP TIPS AND CHECKLIST FOR BOTH LAWYERS AND MEDIATORS NCDR UPDATE
This article is intended as a checklist of considerations for both lawyers and mediators. Firstly non-court dispute resolution must always be safe and appropriate.
The nuanced approach recognises the difference between children matters and financial remedies which is reflected in the rules and the Pre-Application Protocols.
1. Obtain a MIAM unless exempt. Recommend a MIAM for matters issued pre 29th April 2024. Consider a MIAM for TLATA matters (mediators use FM1 form)
2. Explain the impact of the new The Family Procedure (Amendment No 2) Rules to your clients
3. Provide copies of the PreApplication Protocols & the President’s letters to clients –mediators consider providing copies as part of your MIAM
4. Know your way around the PreApplication Protocols and ensure compliance
5. Familiarise yourself with NCDR providers both local & national
6. Keep NCDR under constant review – evidence this on your files
7. Part 3 correspondence – invite the other person to NCDR & respond to all invitations. Correspondence should be open, constructive and address how NCDR is to be funded
8. Funding; litigation loans & LSPOs – include provision for funding for NCDR. We are considering an amendment to Form H to include NCDR costs
9. Adjournments to find out about & engage in NCDR – on application or by order of the court. Inform your clients that the court of its own volition may adjourn proceedings
10. The new FM5 form. Obtain a direction that a revised FM5 is to be filed & served before every subsequent hearing. Cross refer to the date/s of Part 3 correspondence (for private children matters complete a hard copy of the Form). Include the FM5s in the bundle. Completion of FM5 may form part of the new Standard Directions which are under review
11. Court recitals – record offers of NCDR on the face of orders
12. Seek the court’s assistance for agreeing upon the mediator/ evaluator/arbitrator ie ask the
court to exercise its Part 3 duties and responsibilities - ie where, when, with whom and how the NCDR is to take place & be funded
13. Be bolder in seeking costs for unreasonable refusal to engage in NCDR, failure to obtain a MIAM and/or failure to comply with the Pre-Application Protocols / rule 28.3(7)(aa)
14. Read the following and where relevant quote these authorities in your Part 3 correspondence:
• Mrs Justice Knowles - Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam)
• Nicholas Allen KC sitting as a Deputy HCJ - NA v LA [2024] EWFC 113
• HHJ Greensmith - AM v RF [2024] EWFC 288 (B) – children matter; exercised his Part 3 casemanagement duties. Costs order against Mother when assessing her engagement in NCDR
• DJ Doman - WZ v HZ [2024] EWFC 407 (B) recording on the Directions Appointment Order an offer to arbitrate including a contribution towards the other’s costs; secured a later costs order
Authored by: Karen Barham (Consultant Family Lawyer) - Moore Barlow
• HHJ Vincent - HJB v WPB [2024] EWFC 187 ‘the Court will be seeking to focus the parties’ minds on the potential for non-court dispute resolution of remaining issues between them as a next step and before further costs are expended’
• Sir Jonathan Cohen - A v M (No 3) [2024] EWFC 299 “This case cries out for mediation. I will need to hear from counsel as to whether such mediation takes place. I have the power to adjourn proceedings for that mediation to take place, and it is a power that I intend to exercise”
• Recorder Nicholas Allen KC - DF v YB (No 2 costs) [2025] EWFC 76 (B) “I have no doubt in due course there will be a family case in which failure to attend (or engage in) NCDR will be considered to be litigation conduct and justify a costs order” whether FPR or CPR
• And in a lesser known judicial hotspot - DJ Barry Newport CC [2025 unreported] – Notice from the Court “If you think NCDR has not been attempted properly in accordance with the letter from the PFD please contact the court within seven days of receipt of this notice and the court will consider the next steps which may include a pause in the proceedings until NCDR is complied with”. Court listed 30 min appointment, adjourned for 5 months & made a costs order
• Peel J BC v BC [2025] EWFC 236 – save for four specific matters, parties cannot refer to what happened at the pFDR. Only basic factual details are disclosable, including
i. Whether or not it took place and, if so, whether both parties attended
ii. The identity of the pFDR evaluator and the legal teams
iii. The location of the pFDR
iv. The length of the pFDR
It seems that pFDR practice varies, with some leaving the process as soon as the indication is given and others remaining in the building to negotiate. Again some work is being undertaken to understand how the process varies from evaluator to evaluator.
15. Arbitration – the figures where an ARB1 has been filed (up to end May 2025)
To end of May 2025 2024 total
16. NCDR suitability toolkits –lawyers & mediators - recommend to your clients. May be helpful particularly if you are asserting NCDR unsuitability
• NCDR assessment toolkits – developed by Alan Larkin of Family Law Partners https://novalaw.co.uk/
• FLANC https://flanc.org.uk/ Family Law Advice for the Neurodivergent Community - 1 in 5 are neurodivergent – includes an NCDR toolkit
• Family Mediation Council – Domestic abuse screening & assessment resource in development
NCDR and ADR are on the march. Appraise yourself with the changes brought about by The Civil Procedure (Amendment No 3) Rules 2024 effective from 1 October 2024
1. In the civil sector mandatory ADR has arrived – this is important for those conducting TLATA 1996 and Inheritance (Provision for Families and Dependants) Act 1975 matters. Following Churchill v Merthyr Tydfil CBC [2023] Civ 1416 the CPR amendments include a new express power to “order the parties to engage in alternative dispute resolution”
2. Amendment to the costs rules for family proceedings other than ‘financial remedies’ eg Sch 1 CA 1989, interim applications, appeals, by r44.2 (court’s discretion as to costs) at (5) (e) the conduct of the parties to which the court will have regard in deciding what order (if any) to make about costs will include “whether a party failed to comply with an order for ADR, or unreasonably failed to engage in ADR”
- the court ordered a ‘short sharp mediation’ which settled the matter
Do cascade this checklist to colleagues. If you think I have missed something please do let me know. I hope you will find it helpful in your day-to-day practice.
(ALMOST) ANYTHING BUT FAMILY COURT…
I wonder if NCDR* is very often considered in high-net-worth cases?
I rarely read in reported cases the following, ‘the couple tried (insert any or all of the following) mediation/ collaborative process/arbitration/child inclusive mediation etc to sort out their financial settlement. As a last resort they came to the court…..’.
The Traditional Approach
Many lawyers ONLY offer a traditional law firm experience. What I mean by traditional is letter/email writing. That is to write a letter to exchange financial information (perhaps using Counsel to assist), probe Forms E by way of questionnaires, consider the replies and then make an offer to settle. If that’s not
accepted simply go to court or worse just get the client to attend a MIAM so that the case can be issued. This way of working seems as outdated to me as the fax. And I remember using a fax! We all know how slow the court is and subject to last minute postponements and cancellations all of which cost your client dearly and causes them to be unhappy with you.
The Processes That Avoid Court (A Very Short Summary)
Dear reader, there is so much more that can be done to help clients and their children. In my book ‘(Almost) Anything But Family Court’ (2nd edition is on its way) I outline the advantages and disadvantages of these confidential processes. Here they are in all their wondrous glory:
1. Mediation - where the couple work confidentially with a neutral person who facilitates a sensible settlement – note that lawyers can, and it’s helpful when they do, attend;
2. Hybrid mediation - lawyers attend and the mediator uses caucusing to bring about agreement and with the lawyers there it can be made legally binding in the session;
3. Arb -Med - where clients bind themselves to Arbitration should mediation fail or partly fail;
4. Child Inclusive Mediation - the children speak to a mediator and then feedback is given to the parents – the children don’t make decisions but hopefully the parents listen;
5. Child Inclusive Mediation to include lawyers - as above but the lawyers hear the feedback too;
6. Collaborative practice - specially trained lawyers work for the clients and promise not to go to court -though they can use arbitration;
7. Arbitration - lawyers will help the clients make their case on the papers or in person and the arbitrator’s decision is legally binding;
Authored by: Jo O’Sullivan (Collaborative Solicitor, Solicitor Neutral and Accredited mediator) - O’Sullivan Family Law
8. Solicitor Neutral (aka One lawyer One couple, or Resolution Together) – the lawyer works as a neutral but gives joint best interests legal advice and indicates what a court might order;
9. Early Neutral Evaluation - where you all get a usually without prejudice view from jointly instructed counsel on what a court might do – often on the papers;
10. Private FDRs – a more formal version of ENE’s above but likely to take place over a day – compare that to the tiny amount of time available at court FDRs which this process mirrors;
11. Round table meetings (not great but better than court).
Plenty Of Work For The Lawyers
There is plenty of fee earning work for the lawyer; it’s just different work. All these processes need lawyers to assist. Either directly by attending yourself or by preparing your client for the process.
I don’t expect clients to know which process would suit them – often they are overwhelmed or just too busy to consider them. It’s our job to match them to a process that avoids court. It’s in the Family Practice rules and Practice Direction that we do what we can to avoid court. Not focussing on NCDR could leave your client vulnerable to adverse costs claims and your firm to negligence claims or your fees may go unpaid.
Upskill
I would encourage you to upskill so that you can assist clients in NCDR more directly. Train in some form of mutual working e.g. as a mediator or as a collaborative practitioner. Once you have experience working with couples it’s much harder to be unhelpfully
positional for just one client. If you have to pay for your own training, it’ll be worth it, invest in yourself. Working for a couple is such satisfying work.
to be unhelpful. Who are they, the leaver of the leavee; their reactions will be very different? Develop (if you haven’t already) a network of qualified therapists and divorce coaches who can offer a listening ear and help if they work with the couple to assist their communication. They also say that ‘time is the great healer’ – I am not entirely certain that’s true but the further they are from the initial high emotion of the separation/breakup the easier it’ll be to work with them away from the court.
Children Children Children
My heart goes out to the children of the very wealthy. Their parents battle often ends up in the public eye. But what of how the children are feeling and what they want? Usually, we only consider their financial needs but their welfare is more complex than that. The recent extension of child inclusive mediation to include we lawyers is potentially transformative; for us and our clients. I wonder if we could make this a normal process even if the clients don’t partake in mediation at all?
The Future
If you are reading this article, YOU are the future of family law. I wish that at the beginning of my career I had done more to promote and encourage NCDR. The quality of my work life would have been greatly enhanced and my clients would have been happier. Over to you.
*NCDR = Non Court Dispute Resolution
Timing
As they say, ‘timing is everything’. Consider where your client is on their breaking up journey. If it’s early days in the breakup they may be too emotional – angry or upset etc – to effectively deal with things. Writing letters at this early stage is likely
In Scotland, as in other jurisdictions, there are a number of processes which can be used to resolve disputes arising from the breakdown in relationships. These are explored below through the lens of a Scottish lawyer.
Mediation
In Scotland, mediation can be carried out by a lawyer mediator or a nonlawyer mediator. Lawyer mediators are accredited by the Law Society of Scotland and are members of CALM (Comprehensive Accredited Lawyer Mediators) or Family Mediation Scotland. The mediation process is entirely confidential. This requirement is governed by the Civil Evidence (Family Mediation) (Scotland) Act 1995 which
provides “that no information as to what occurred during a family mediation shall be admissible as evidence in any civil proceedings”. Family mediation includes matters relating to children and between spouses, civil partners or cohabitants concerning the breakdown or termination of their relationship.
Confidentiality is a key benefit to the mediation process, particularly for those who wish to ensure that discussions about assets and wealth are kept out of the public domain, which would be the case should matters require to be resolved through the courts.
If an agreement is reached, this will be documented by the parties’ respective solicitors in a written Agreement. In Scotland the court does not require to have sight of that Agreement before granting the divorce.
In the mediation process, parties can also be creative as to how they resolve the financial matters arising from the breakdown in their marriage or civil partnership. A resolution may be achieved that might not be possible through the courts. The couple will be able to maintain control over the process, rather than having a decision imposed on them which may not suit either of them. This may particularly be the case where there are valuable assets involved and there may be tax advantages to structuring a financial package in a particular way.
Parties can attend mediation by choice, or in litigated cases, they may be referred to mediation by the court.
There is provision for the courts in Scotland ( both the Sheriff Court and the Court of Session) to refer any family or civil partnership action ( in which an order in relation to parental responsibilities and rights is in issue) to a mediator accredited by a specified family mediation organisation. Ultimately whether such a referral is made in any given case is up to the individual Judge or Sheriff presiding over that case, meaning that the practice can vary from court to court and indeed, case to case.
Since the introduction of new Sheriff court rules in relation to family or civil partnership actions on 25th September 2023, a Sheriff can now refer any family or civil partnership action (or part thereof) to a mediator.
There is no legal sanction which is imposed if the parties fail to attend mediation, albeit the court may not look upon this favourably.
It is noted that the approach to mediation taken by the Scottish courts differs to that in England, where it is understood that parties must consider mediation before a court action is raised and attend a Mediation Information Assessment Meeting (subject to certain exemptions).
In Scotland, there is no such provision and an action can be raised without the parties first attending mediation, albeit they can be referred to mediation during the course of the proceedings as outlined above. There will, however, be changes arising from the Children (Scotland) Act 2020. In cases where orders in relation to parental rights and responsibilities are sought, the Scottish Ministers are to make funding available for alternative dispute resolution and are to set up a pilot scheme of mandatory alternative dispute resolution meetings.
It appears that this approach is similar to the MIAM attendance in England, albeit the Scottish equivalent would take place during the course of the action and will, as matters stand, only apply where orders are sought in relation to children.
The pilot scheme has not, however, progressed as quickly as envisaged and to date the government’s duties in this regard have not yet been fulfilled.
Mandatory Mediation?
It is noted that on 23 March 2023 the UK Government announced plans to fund mandatory mediation for separating couples in England and Wales; however, ultimately the decision was taken not to proceed with this. The Law Society of England and Wales welcomed this.
This is a matter which has been considered north of the border. Arguments against this have included compulsory attendance being against the ethos of mediation and the
potential for inequality of bargaining power. Those in favour of compulsory mediation point to the cost savings to individuals. The burden on the court system and the delays in decision making as a result of this is another factor in support of compulsory mediation. Whether this will ever become a feature in family law disputes either north or south of the border remains to be seen.
Collaboration
The Collaborative process can be used to resolve matters arising from the breakdown in a relationship in Scotland. The clients and their solicitors sign up to a participation agreement at the outset in which they undertake to be open, honest and make full disclosure. They also agree not to litigate with those solicitors. Matters are resolved within a series of confidential four way meetings, involving the couple and their respective solicitors. It allows parties to make retain control of decision making and the ability to come up with creative solutions to resolve the issues between them. Other Collaboratively trained specialists such as financial advisers, accountants or counsellors can also be involved in the process. Those who are Collaboratively trained are members of Consensus Scotland, which has local ‘pod’ groups as well as a national committee.
Arbitration
Arbitration is another method by which parties can resolve disputes that arise when a relationship breaks down. The parties can appoint a family law arbitrator who will resolve their dispute. Lawyers who have been trained as arbitrators are members of FLAGS ( Family Law Arbitration Group Scotland). The process is also confidential and is generally quicker than the court process. The arbitration can be convened at a time to suit all parties, which is particularly beneficial where parties may have limited time during conventional court hours or are located in different jurisdictions. The decision which is made by the arbitrator is legally binding on the parties. The statutory framework for arbitration in Scotland is set out in the Arbitration (Scotland) Act 2010.
The general principles of the 2010 Act ensure fairness and impartiality and provide freedom to parties in agreeing how to resolve disputes.
The Act also states that the court should not intervene in arbitration except as provided for in the Act, and parties cannot rely on arbitration and legal proceedings concurrently. If court action has already commenced, then either party must apply to the court to sist ( stay) proceedings and convert to arbitration instead.
The approach taken in resolving the matters arising from the breakdown in a marriage or civil partnership is, however, dependent on the circumstances of any particular case and the parties involved, and this will be case whether the dispute takes place either north or south of the border. For high net worth individuals, the ability to keep the process confidential and away from the courts makes non- court dispute resolution attractive.
JUSTICE WITHOUT JUDGMENT
THE RISE OF NCDR
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 223, 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 clientfocused 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.
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.
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
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.
