This article is intended as a checklist of considerations for both divorce lawyers and mediators. Firstly, non-court dispute resolution must always be safe and appropriate. The nuanced approach recognises the difference between children matters and 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 Pre-Application Protocols & the President’s letters to clients – mediators, consider providing copies as part of your MIAM
4. Know your way around the Pre-Application 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 and 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 and 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. For example, 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 case-management 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.
- 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) issued a 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.” The court listed a 30-minute appointment, adjourned the matter for five months, and made a costs order.
- Peel J in BC v BC [2025] EWFC 236 held that, save for four specific matters, parties cannot refer to what happened at the pFDR. Only basic factual details are disclosable, including:
- Whether or not it took place and, if so, whether both parties attended
- The identity of the pFDR evaluator and the legal teams
- The location of the pFDR
- 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. Work is also being undertaken to understand how the process differs from one evaluator to another.
15. Arbitration – the figured where an ARB1 has been filed (up to end May 2025)
| To end of May 2025 | 2024 total | Total since commencement of the scheme (2012 & 2016 respectively). | |
| Financial | 80 | 130 | 832 |
| Children | 19 | 43 | 150 |
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.
- FLANC – 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.
- 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”.
- Amendment to the costs rules for family proceedings other than ‘financial remedies eg Sch 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”
- Read the following: DKH Retail and others -v- City Football Group. 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.
This article was first published in ThoughLeaders4 HNW Divorce Magazine
