Last year there were major changes made to the Family Procedure Rules and a new push towards parties taking part in non-court dispute resolution (NCDR) instead of going to court.
The message of this change was clear - parties must genuinely try to resolve their case outside of court, or risk negative costs consequences. If they did not want to engage in NCDR, there must be a good reason.
One year on from this change, we review the most recent cases to see whether this has resulted in tangible changes in this area of law.
These changes to the Family Procedure Roles have been slow to take hold. The introduction of the FM5 form, which requires parties to set out their position on the suitability of NCDR before a court hearing, may seem to some as just another box to tick as part of hearing preparation, with detailed consideration of its contents being rare.
Unless participants in the legal process feel these new rules have teeth, there appears to be little motivation for unwilling parties - safe in the knowledge that they are unlikely to face a costs order - to consider or engage properly with NCDR.
We all know court proceedings can be slow and difficult, and that NCDR in its various guises can be a worthwhile alternative. But without the threat of a robust approach from the court on costs, it can be more difficult to persuade a reluctant party of the benefits of NCDR.
This is not to say that NCDR is suitable for every case. There will always be a place for court proceedings - for example, in cases that involve domestic abuse. That said, NCDRs are flexible, meaning safeguards can be introduced that mean parties can engage effectively even where domestic abuse is present.
Court proceedings should not always be seen as a comprehensive solution to cases that deal with this difficult topic. If we want the court system to be best placed to deal with those cases that require judicial input, then it benefits everyone to ensure that cases that do not need to go to court are resolved via NCDR.
When NCDR works well, it can be cheaper, quicker and less adversarial than court proceedings. The more cases that use NCDR, the less congested the court system becomes.
There have been two notable cases involving NCDR that highlight the extent and range of the court powers in this area. These were two separate cases, both before Nicholas Allen KC, where he exercised some of these powers. Neither of these cases appear to have strayed into an area where costs orders could have been made, but the potential to do so remains.
In the NA v LA case from 2024, the judge felt that the case was a 'paradigm' for the exercise of the court’s powers and ordered court proceedings to be stayed to allow the parties to engage with NCDR and then to report back to see the progress made. The judge was clear that there didn’t have to be a full exchange of financial disclosure before the parties were required to make a decision as to whether NCDR is suitable.
In the DF v YB case from 2025, the judge found that there was no failure by the parties to engage with NCDR without a good reason. However, he did emphasise the entitlement of judges to find out what has happened at the NCDR, to ensure that they are satisfied that there has been a genuine engagement with the process.
We're still very early in this process and, as these changes settle in, we imagine that more and more cases will come before the court to decide if the NCDR has been genuinely engaged with and if a costs order should be made. In time, we may then see a growing awareness of the strength of these new rules, and a greater reluctance to go to court.
We're seeing more and more cases using private financial dispute resolution hearings and arbitration (alongside other forms of NCDR) and I imagine that this trend will continue. With judicial encouragement, these changes may happen even more quickly. In time, who knows - we may see court proceedings becoming the alternative to NCDR.
If you would like to discuss these changes to the Family Procedures Rules or discuss the different methods of NCDR, please contact our family team who are experienced in this area, including members trained in collaborative law.
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