In October 2024, a Resolution multi-disciplinary working party published a report, Domestic abuse in financial remedy proceedings. Described as a ‘groundbreaking’ consideration of the interplay between domestic abuse and the treatment of finances on separation and divorce, this 18-month project is a powerful call for change from eminent family law professionals who used their collective expertise to place this important topic firmly in the spotlight.

The survey behind the report received 526 full responses, indicating concern that domestic abuse’s long-term impact is considered insufficiently in proceedings involving married or civil partners.

Whilst Resolution’s report recognised work in this area is only just beginning, it nonetheless made significant recommendations. It is impossible to deal with all of these here. We also do not intend to express our views on all the recommendations, many of which will doubtless be subject to further judicial and other consideration in due course – for example, the suggestion that the court’s current approach to conduct under s 25(2)(g) Matrimonial Causes Act 1973 ‘leads to unfair outcomes for some victim-survivors of domestic abuse’.

We concur with the desire to see cases dealt with ‘justly’ and the need to ensure parties are safeguarded from domestic abuse. But whether it is necessary to review the court’s current approach to conduct (or, for that matter, the legal services payment order (LSPO) rules, which the report suggests also require urgent review) falls beyond this article’s scope.

Instead, we focus on the recommendations surrounding the use of non-court dispute resolution (NCDR) and the extent to which NCDR is or is not appropriate where domestic abuse is alleged.

A broken system?

Few would contend that the court system is currently handling financial remedy cases in an efficient or timely manner. It faces horrendous delays, notwithstanding the welcome trend towards private financial dispute resolutions (pFDRs) in many cases or, where adjudication is required, arbitration.

Resolution’s report identifies some key themes currently bedevilling the system, including:

• the need to safeguard victims from ongoing domestic abuse – ensuring case management decisions reflect this;
• the fact that some abusers do not comply with disclosure obligations, and how case management powers can be improved to deal with this;
• the need to deal with matters within a reasonable timeframe to prevent the process becoming a further form of abuse; and
• issues of funding.

The report does not, however, explicitly deal with the question of funding for NCDR work. This is a pity. Collaborative practice has been in the UK for the best part of 20 years and yet has never been supported by public funding. By contrast, the government has provided support for mediation, through non-means-tested vouchers in matters involving children. Why should such a scheme not also apply to other forms of NCDR?

Resolution’s report is entitled Domestic abuse in financial remedy proceedings. We understand the rationale is to shine a light on certain problems within the family justice system. But the fact that its title refers to ‘financial remedy proceedings’ and only turns in any detail to the question of NCDR on page 25 of 33 is disappointing.

Its findings appear to suggest that, where there are allegations of domestic abuse, encouraging the victim-survivor to take a litigious route can be the appropriate course of action. Indeed, a key recommendation is that, where there are allegations of ongoing domestic abuse, ‘the balance may shift away from any form of NCDR continuing’.

NCDR

Resolution’s report describes NCDR as an ‘evolving voluntary option which requires the engagement of both participants’. It acknowledges NCDR ‘can be appropriate in some domestic abuse situations, provided that the victim-survivor can make an informed choice about the different processes with appropriate safeguards and support in place’.

Despite this introduction, almost no information is set out about the various forms of NCDR, or how to tailor them to limit ongoing exposure to financial and other forms of domestic abuse and provide the victim with relief from such abuse at a much earlier stage within a supported and protective process which is both time- and cost-limited.

Measures available through the range of NCDR options to provide security and safety for victim-survivors are a far cry from those in court. How often are special measures (separate entrances and the erection of screens) requested – only to find communication has somehow been lost and they are not present on the day? Such basic safeguarding steps can be safely addressed within the NCDR arena, alongside other far more important precautionary measures aimed at protecting domestic abuse victims (both short and long term).

The COVID-19 pandemic saw a welcome trend towards online court hearings, but a recently growing counter-trend (particularly after the First Appointment) is for in-person hearings. These increase the risk of re-traumatising victim-survivors via attendance at stressful court appointments with basic safeguards not always being in place.

By stark contrast, many financial practitioners will be aware of the range of NCDR options through which even higher-conflict cases can be resolved. Hybrid mediation, often conducted online with the support of solicitors (and indeed counsel), offers a particularly supportive environment for victim-survivors, who can attend remotely from their lawyer’s office. This ensures full support without any risk of meeting their perpetrator. Moreover, pFDRs and arbitrations can be conducted remotely, with additional safeguards in place where required.

We agree with the report’s conclusion that all family justice professionals need to be aware of the risks and trained to recognise all forms of domestic abuse. However, whilst mediators, collaborative lawyers and lawyers offering one-couple one-lawyer services are required to undertake specific safeguarding and domestic abuse training, there is no such requirement in place for lawyers not currently offering NCDR services.

A range of NCDR options

When the family mediation process first emerged, it was (correctly) believed it would be inappropriate for domestic abuse victims to have to sit with a mediator alongside their abuser and try to discuss future plans. Mediation has come a very long way since then. Shuttle, online and hybrid mediation can all create a safe environment, even in high-conflict cases – provided safeguarding considerations are, of course, carefully considered.

By March 2024, nearly 100 mediators had undertaken Resolution training in hybrid mediation. Hybrid mediators have specific training in dealing with high-conflict individuals and safeguarding considerations where this kind of dynamic is identified.

What options are available and how/why do they benefit domestic abuse victims? Prior to the issue of a court application, the first port of call is an accredited mediator, who conducts a Mediation Information and Assessment Meeting (MIAM). Despite the name, its purpose is to consider the suitability of not only mediation but also all forms of NCDR, including mediation (classic, hybrid and child-inclusive), neutral evaluation, collaborative practice, pFDR and arbitration (children or finance).

A principal objective of the MIAM is to consider safeguarding and assess what, if any, form of protection is required in each particular case. Yet there is no corresponding duty on a family law solicitor representing a litigant to undertake any safeguarding checks when a financial application is made to the court. We argue this should be looked at, given the new Pre-application Protocol for financial remedy proceedings (effective from 31 May 2024) which specifically references that states the needs of any children should be addressed and safeguarded and that ‘the procedures which it is appropriate to follow should be conducted with minimum distress to the parties and in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances’.

For someone in an abusive relationship, the speed with which resolution is reached is vitally important. At present, applications can take up to 24 months from issue to adjudication. Is there a requirement that the family law solicitor outlines this to their client at the outset? Do they do so? Given this possible level of delay, is court necessarily the right route for clients, particularly where abuse is taking place?

A common concern is that those subjected to abuse are often not easily able to fund any kind of legal or other cost. Unfortunately, any route towards resolution attracts some cost; the key is to ascertain how matters can be dealt with cost-effectively.

Mediation

Mediation’s development, particularly post-pandemic, means parties can attend mediation in person, but in separate rooms (arriving at staggered times and immediately assigned separate rooms) or, indeed, online, attending in separate breakout rooms throughout. They can be supported by lawyers who either remain at their side throughout meetings (remotely or in person) or, if funds are tight, dial-in via phone or remotely, as and when required. Today, the support of lawyers and the mediation process’s flexibility also means the mediation is more focused and outcome-driven than ever, invariably reducing the number of sessions required.

In the hybrid model, the mediator can hold confidences: they can be provided with information which does not have to be shared in the ‘other room’, meaning the victim can safely explain behaviour to which they have been subjected and their fears for the future. This information can be vital to help the mediator, as a neutral facilitator, manage the discussion from a fully-informed position and use their skill set to encourage early resolution. Their role is to ensure the outcome falls within the bracket of what a court would see as fair. As such, checks and balances are built into the mediation process to ensure a fair outcome is achieved, power balances appropriately addressed and parties kept safe at all times.

Concerns over NCDR

The Resolution report identifies concerns that ‘those conducting NCDR must be alert and where appropriate should stop the NCDR if there is concern that it is being used as a delaying tactic, or as a means of exerting pressure on victim-survivors to agree unfair settlements’.

It cites examples of perpetrators agreeing to mediation, but refusing the option to have lawyers support the participants at the mediation meetings or not agreeing to the option to bring an independent evaluation (such as an early neutral evaluation) into the process for a specific purpose. It continues to state there is a ‘risk of abuse in arbitration and/or private FDRs, to which professionals need to be alert’.

It then states that at an Economic Abuse Summit (June 2024), there was a consensus that:

‘in any form of NCDR, where:

• there has not been disclosure of a party’s finances within a reasonable timeframe; or
• where a party does not have security that interim maintenance, bills associated with the family home and legal service payments are agreed (in cases where resources allow); or
• there are allegations by that party of other forms of ongoing domestic abuse;

the balance would shift away from that NCDR continuing, at least without directions from the court to ensure that the disclosure is provided.’

It continues:

‘Resolution would suggest that point is reached after say four weeks of failure to provide disclosure (absent extenuating circumstances) in most cases, or six weeks in cases where the finances are particularly complicated.’

We agree with the recommendation that, as a matter of law, the duty of full and frank disclosure starts when parties start to engage in NCDR or in negotiations, i.e. that this duty will usually start before any court proceedings.

In mediation, disclosure is critical in establishing what resources there are to divide and this is most likely to mirror the court process (completion of Forms E followed by questionnaires and replies). As Resolution mediators, our mediation agreements already explain the need for both parties to provide complete and accurate disclosure.

Mediators have many tools to encourage parties towards full disclosure, particularly where lawyers are there to support the process – not least, the ability to explain to a recalcitrant, abusive party the cost-consequences of not providing full disclosure should the matter proceed to court.

Arbitration

To us, suggesting a specific timeframe for the balance to shift away from NCDR towards court proceedings (particularly one as short as 4 weeks) seems misplaced. Where one party has been unwilling to disclose, surely a better option is first to consider arbitration? This does require both parties to consent, and some will question whether arbitration can force a reluctant party to comply. Further to April 2024, a party unreasonably refusing arbitration (for example to deal with disclosure issues) will undoubtedly be at real risk of facing a costs order if they refuse to engage.

Notwithstanding the need to pay the arbitrator, arbitration can be cheaper than the court process – largely because of speed. The mere existence of a long-term file will generate a cost. Moreover, an arbitrator can be instructed by LIPs.

The couple build a rapport with the arbitrator, who is available to deal with any issue which may arise – often via email. It can be easier for an arbitrator (or mediator) to explain the need for full and frank disclosure and to ensure requests for information are proportionate. Under the Arbitration Act 1996, the arbitrator has greater power to award costs than the court, if they consider a costs order appropriate, and is more likely to do if they feel that this is appropriate and reflects the correct outcome. They desire a reputation for being fair and diligent as this is the only way to secure repeat work.

If a party resolutely refuses to comply with their obligations in relation to disclosure or otherwise, the arbitrator can ask what is going on and why. If they remain intransigent and the matter goes to court, a costs order may be imposed.

The Certainty Project provides the fusion of mediation and arbitration and can include any other form of NCDR. Collaborative practice can replace mediation, and an early neutral evaluator can be brought in at any stage to break impasse. The idea is to help the couple reach their own decision, or, if they can’t, to provide a prompt decision through arbitration. Available for finance and children, arbitration can be tailored to meet the couple’s specific needs and finality can be achieved within a ’certain’ timeframe.

No magic wands

The court process cannot make someone disclose fully if they choose not to. A mediator or arbitrator, with a relationship with each of the couple, may be able to explain far more effectively why disclosure is so important. And, where issues remain unresolved, an arbitrator can adjudicate on contested questionnaires.

By contrast, a party facing non-disclosure through court invariably needs to apply for an order on Form D11 with a penal notice attached, hoping common sense may prevail. How long will that take? Weeks? Months? Meanwhile, what happens to the couple?

The same delay and control issues can apply in interim maintenance/LSPO situations. In our experience, early hybrid mediation and/or arbitration can be highly effective at concluding such issues. Contrastingly, a court application can take weeks or months to bring before the court, whilst the respondent continues throughout to exert financial pressure on the applicant. This may also have an adverse effect upon the applicant’s mental health. Here, the court system can actually facilitate the perpetuation of domestic abuse. The victim must hope their lawyer will continue to act, even though, until the determination of the LSPO, there is no means to pay them.

As confirmed above, the newly-amended Pre-application Protocol sets out wider considerations. After separation, notwithstanding domestic abuse, parents need to learn to parent together (even via parallel-parenting in higher-conflict scenarios). Lengthy, unresolved conflict or months-long waits for court hearings is hardly conducive to this, and ongoing court proceedings can shut down avenues for ongoing dialogue or therapeutic work so necessary to achieve longer-term improvements for families.

Court hearings vs private hearings

In the court system, all too often, the judge does not receive the court bundle until minutes before the hearing. Hearings are frequently cancelled the day before due to lack of judicial availability, resulting in wasted brief fees and a new listing set several months ahead – with no one to explain why this happened and what will occur during the intervening period. On the day, other cases are sometimes pushed into the list ahead of a hearing, so the case starts late and everything feels rushed.

Even with screens in place, victims risk bumping into their abuser to or from court. In the NCDR arena, steps can be taken to ensure victims are safely in their car and travelling home before the other party is released from the mediation or arbitration location.

By contrast, previously niche, pre-pandemic, the pFDR has morphed into a commonplace step in most financial remedy applications of any value. We argue this option should be considered in every financial remedy matter where resolution through mediation or another form of NCDR has proved impossible.

The pFDR takes place at a safe and secure venue (or online with screens off, where a party does not want to see their abuser), before a judge who is dedicated to that couple and who has received and read the papers cover-to-cover. This is infinitely preferable to appearing in the court system before an FDR judge, who may have several other cases to deal with and will frequently not have anywhere near the same grasp of the papers.

Fair Shares updating report

Since October’s Resolution report, we have seen the updating Fair Shares report published, looking specifically at issues of domestic abuse in financial remedy cases on divorce and separation.

Whilst the report relies on the survey data to express caution about NCDR routes for domestic abuse survivors, the limited number of survivors who had attended mediation in the interview sample meant that no findings could be drawn about the experiences of survivors who had gone through various NCDR routes including mediation. Whilst the report referred to one victim-survivor who had a poor experience of mediation, of the 12 victim-survivors interviewed from the sample of 53 divorcees, only one victim-survivor had attended mediation (and another a MIAM).

It is, moreover, interesting to note why it says so few victim-survivors attended mediation at all – these included a ‘lack of communication between the parties; mediation not being raised as a possibility, costs, not being ready to mediate, and not having any/sufficient assets to warrant going to mediation’. Mediation was not necessarily inappropriate in such cases. It would seem likely that some parties were not appropriately signposted or supported in exploring mediation or could not obtain funding and legal support to engage in the process.

In the context of researching this article, we spoke to Professor Emma Hitchings, co-author of the report. She said the researchers had not been able to cover the desirability of lawyer-inclusive, shuttle and hybrid mediation models in better supporting victims survivors. This may be something for further research.

Training

We concur with the Resolution report that all family justice professionals should be aware of the risks and trained to recognise domestic abuse in all its forms.

We would not stop there, however. Domestic abuse is clearly something all lawyers should have training in. All family law professionals, not just mediators, should be trained to spot safeguarding issues before a court application is issued. In the same way, given the new regime in place since April 2024 (requiring all parties to demonstrate at every stage of the court process their views on engaging with NCDR), surely there should be a concurrent requirement for all family law practitioners to have training in the various NCDR options. How can practitioners safely navigate the new landscape without understanding both domestic abuse and NCDR?

The decision of NA v LA [2024] EWFC 113 – where Nicholas Allen KC sitting as a Deputy High Court Judge rightly in our view stayed the financial remedy proceedings for 3 months even where there had been a background of alleged domestic abuse – illustrates the critical importance for all practitioners of a rounded understanding not only of alleged domestic abuse, but also of the basics of NCDR and other areas recommended as required training by the 2020 Family Solutions Group report, such as around the psychological aspects of divorce and the voice of the child. The recent Fair Shares report also points towards the need for better education and training, so that people are made aware of all relevant NCDR options, given some survivors did not even know mediation was an option.

Perhaps it might be suggested NCDR is still seen as an ‘alternative’? Not because court is necessarily always better suited to victims, but because court is the option which still feels most familiar to many practitioners. At present, barely more than 25% of Resolution members have any form of specific NCDR training. Surprisingly, there is currently no requirement at all for any training in this field.

In the new post-April 2024 environment, court proceedings are no longer to be issued without proper consideration of NCDR, and then only as a last resort. Indeed, even where domestic abuse is present, there are almost certainly better routes and options to be properly explored first. Where domestic abuse is concerned, the court process will lead to further delay which may cause re-traumatisation. It is no magic bullet.

For individuals who stubbornly refuse to meaningfully participate in any form of NCDR, court may be unavoidable. However, given developments in recent months, there is now an expectation that some form of NCDR is properly explored first. If they do reach court, costs sanctions are likely to be imposed.