You don’t have to travel too far back to a time when separating families had two stark choices – negotiate or litigate. Either you did a deal or you went to court. Those days are now, fortunately, long gone but many couples have still found themselves struggling in the no man’s land in between. Whilst there are a multitude of options available to separating families – both in terms of finding outcomes but also support along the way – too often the last resort when the going gets tough has continued to be to default to a court process. Either because couples have struggled to get the help they need to make the alternatives work, or because it has frankly been easier for the parties or their lawyers to fall back into the grooves of a court system which is structured and linear with a judge available at the end of it who can make a final decision. The new protocol is exactly what was needed to force a change of direction. It requires parties not just to consider but, unless there is a good reason not to, to propose and engage in non-court dispute resolution (NCDR). Constructive negotiation in correspondence is not enough, though a Round Table meeting might be. But the overall message is clear – there must be meaningful attempts to seek resolution (and provide disclosure) outside the court process.

What are the alternatives?

Over the course of over two decades doing this job, the number of options open to separating couples who want to try to do things differently has increased enormously, but the fundamental point has remained the same. Where possible, it is better for people to find their own solution. This is the end of a relationship between individuals and if they are able to reach a resolution themselves, they remain in control of what the outcome looks like; and it enables families to work together to find solutions rather than putting people on opposing teams and battling it out – an approach that makes for great small and big screen drama, but no one in their real life wants that.

In terms of options, these vary from mediation, one lawyer one couple models (including Withers’ Uncouple and the Resolution Together model), collaborative law, early neutral evaluation, private FDRs, and arbitration. All of which can take place instead of or alongside court proceedings. But the tendency still has been to want to have the court system and timetable available as a fall back. And until the recent rule change, nothing has prevented couples and their lawyers from keeping a foot in both camps.

The threat of court proceedings no longer gives all the advantages it once used to. The law in relation to financial remedies is fairly settled; the shockwaves of White v White [2000] UKHL 54 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 and the subsequent cases that dealt with how assets are shared and how maintenance should be calculated have well and truly died down. And so going to court can only in rare cases be said to be necessary because there is a point of law that is uncertain. And if instead there is a dispute about how the law should be applied, it will again be a rare case that can only be resolved by asking a judge to give a view. And so, for many cases, the main advantage of the court setting is that it offers a structure in which progress can be made. But the NCDR protocol makes it abundantly clear that the court is no longer prepared to offer that service. Couples and lawyers are going to have to find another way.

The rule change that took effect in April 2024 widened the definition of NCDR and also narrowed the Mediation Information and Assessment Meeting (MIAM) exemption. The rule change confirms the court’s power to stay proceedings for NCDR, and imposes an obligation on parties to complete the FM5 setting out their view on NCDR. The shift in emphasis and approach is clear.

Carrots and costs

Inevitably change can lead to some level of pushback, not least because the way in which the protocol and the courts have ‘encouraged’ NCDR can seem to suggest that the judges see lawyers rather than clients as driving the litigation. If your only experience of family lawyers was reading judgments, you’d be forgiven for thinking that all they wanted was to get their clients to court. Knowles J in X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) said ‘family resources should not be expended to the betterment of lawyers, however able they are’ and costs in family cases have been described variously as ‘outrageously high’, ‘vast’, ‘apocalyptic’ and ‘eye-watering’ with judges sometimes calculating not just percentage divisions between the parties but also the percentage that has gone to the lawyers. This sort of coverage not only does the lawyers a huge disservice, but it also overlooks the fact that lawyers take instructions from their clients. And sometimes, however focussed the advice is on settlement, clients can give instructions that disregard that advice.

In fact, most lawyers don’t need encouragement to focus on resolving cases – as strategists and tacticians we know we often serve our clients best by helping them to iron out the differences between them. Finding creative solutions or formulating a proposal that incentivises compromise without sacrificing too much is intensely satisfying. Francis J described the wife’s offer in Helliwell v Entwistle [2024] EWHC 1298 (Fam) as ‘spot-on’ and made a costs order against the husband because of it.

What is helpful for lawyers in the new protocol is that the repercussions for not following it are clear to the clients as much as the lawyers. The fact that the court is now increasingly likely to make costs orders can be helpful when trying to encourage clients to see a pragmatic way forward and get beyond the mire of emotional fall-out to look forward to a life post-separation. Fundamentally, family law is different to most other fields of litigation as the blocks to settlement are as likely to be emotional as financial, and in the context of a discretionary system with uncertainty as to outcome it can be hard for clients to make that decision to compromise.

Sticks and stays

Failure to consider alternatives could result in a stay or adjournment of the case. In NA v LA [2024] EWFC 113 Nicholas Allen KC (sitting as a Deputy High Court Judge) adjourned the case to allow time to explore alternative ways to resolve it. The parties were then to contact him after 6 weeks to confirm: (1) what engagement (if any) there had been with NCDR; (2) whether any of the issues in the proceedings had been resolved; and (3) in light of the foregoing, what were their respective proposals for the way forward; and at that point the judge would decide the appropriate path to take.

It remains to be seen whether this judgment will have had the desired effect for that family, and whether this will be a typical interpretation of the new rules. If the parties had both attended a MIAM and been clear that they chose litigation would the court have taken a different approach? If they tried another approach and didn’t reach a resolution, how can the court determine whether they were properly engaged? If they choose not to arbitrate – and other options don’t have the necessary ‘teeth’ to ensure disclosure – will they be criticised?

By removing the ability for this couple to keep a foot in both camps with court proceedings running on in the background, as has been the approach to date, it is in my view far more likely that an NCDR process will work. And if the couple really are eager to have a quasi-court process, then arbitration will provide the perfect solution. Although by closing the court’s doors, Nicholas Allen KC has effectively consigned this couple to significant delay if NCDR does not prove fruitful (the court listing is such that it will be many months before they are back in the court’s diary), in so doing he has likely ensured that NCDR has the greatest possible chance of success.

In this case, the clock had started ticking on the application for periodical payments, and it seems to me that this is a solution that may prove valuable in other cases where maintenance is relevant – issue the application and then agree a stay to allow time to explore alternatives to court.

NCDR and abuse

One of the most challenging paths to navigate when exploring NCDR is where there are allegations of abuse in a financial remedies case but where those issues are not ‘live’ in the sense that they do not form part of the court documents or the open narrative. The threshold for findings of conduct impacting financial outcomes remains high. Many clients will choose not to pursue allegations either because they have been advised that they will not have a bearing on the final outcome or because of the cost or emotional implications. For those who have recently found the strength to leave an abusive relationship the idea of embarking on litigation as to whether or not the abuse took place will be overwhelming.

Judges may not be aware of concerns regarding abuse where a decision has been made not to pursue it. MIAMs are confidential and so the fact that a mediator may have heard something in a MIAM that would make them conclude mediation is unsuitable would not be disclosed. Therefore, judges could make decisions regarding what looks like a refusal to engage without all of the necessary knowledge. It is going to be really important that there is proper judicial training in this respect to ensure that these issues are taken into account when mediation is being considered as the NCDR route, particularly if a mediator has indicated that the case is not appropriate to start or continue mediation or any other form of NCDR. However, allegations of abuse need not prevent a case being dealt with in arbitration or via a private FDR. It is more a question of choosing the right approach for the case.

NCDR and disclosure

To the consternation of some, Nicholas Allen KC in NA v LA was clear that there need not be full disclosure before a decision is made about NCDR. This seems to me to be an entirely reasonable position to take.

The judgment makes clear that you do not need financial disclosure before exploring NCDR, and that you can use NCDR to obtain that disclosure, but that is not the same as telling parties that they should start to discuss outcomes without that disclosure. When it comes to the financial implications of separation, all forms of dispute resolution begin with the exchange of financial disclosure, whether in the court process or outside it. Given financial disclosure is provided on an open basis, it is relatively straightforward to return to court to explain the information was not forthcoming. Any facilitator of NCDR will not be willing to support substantive discussions without it. A mediator, for example, would be unlikely to tolerate repeated sessions without the information being forthcoming – that is the ‘teeth’ in the process: the provision of information is effectively a condition of continuing in the process.

In reality, the request for disclosure is the first test of engagement when it comes to NCDR, those that are unwilling or procrastinate in the provision of information reveal themselves to be unlikely candidates for some forms of NCDR and that lack of engagement may eventually sound in costs.

Risk vs opportunity

Sometimes focussing on risk means losing out on opportunity. There is a real opportunity with the new protocol to do things differently, and for clients and their lawyers to encourage their counterparts to do things differently too.

Where there is concern regarding delay or failure to fully disclose, you can insist on a timetable for the provision of information; set out the stages at which there should be participation in negotiations or mediation; suggest a date for a private FDR; or propose the terms of an ARB1. Open letters can be sent to protect parties’ positions in respect of costs. Some of the requirements of the protocol are common sense and good practice – making sure correspondence focusses on relevant issues, avoiding polarising or hostile language, and forcing couples to try more than once and to try different NCDR options.

Where there are concerns regarding abuse, there are ways to mitigate those concerns – for arbitration, the same protective measures that exist within the court process can be imported, e.g. the giving of evidence from behind a screen, separate entrances and exits so that parties do not encounter each other. In mediation, separate space mediation should be explored so that the parties neither see nor hear each other, or solicitor supported mediation to protect parties from intimidation or undue pressure.

The reality is that all of the options will need to be tailored to meet the needs of individual clients and couples. But the benefit of that tailoring highlights even more starkly the inflexibility with applications to court which are sometimes a poor solution to these issues and come at the cost of legal fees, delay, and an even greater polarisation. For those leaving abusive relationships, prioritising autonomy can be key. Supporting survivors of abuse and empowering them will mean that they will have more options open to them and may be better than the only way forward being a court process.

A final note

I have two significant concerns about NCDR.

My practical concern is that this push won’t work. Either because judges will find themselves unable to resist the temptation to solve the problem that’s in front of them; that is exactly what they have spent their whole careers being trained to do. Or because couples will continue to feel stuck in the middle ground, with no access to a court system, and not sufficiently supported to engage in the alternatives.

Separating families who are fortunate enough to be able to afford support will be able to benefit from the input of lawyers, mediators, financial advisers, accountants, counsellors, divorce coaches, and other professionals. All of these people can offer help so clients can navigate their way through a process without the court as a safety net. Those who are in receipt of Universal Credit should be able to claim legal aid for legal advice in support of mediation. But many families will fall in the gap between these two extremes and, for them, closing the doors to the court without there being properly affordable and accessible advice about the options and the law is dangerous territory. And without that help and support, the court will continue to have to pick up the pieces, however frustrating the judges find that. One can only hope that the space afforded to them as a result of other cases leaving the system helps alleviate the burden.

My philosophical concern is in relation to the importance of access to justice and the indirect privatisation of the family justice system. It has been determined by the Court of Appeal that it is permissible for a court to order parties to attempt NCDR and to stay proceedings to allow for that. However, with arbitration being one of the NCDR options that a court can require, there is an issue not just with the fact that arbitration is binding and this may impinge on a party’s Article 6 right to a fair hearing, but also with the fact that in circumstances where a judicial or quasi-judicial approach is appropriate, the court can require parties to self-fund that process. Coupled with which, courts provide much needed jurisprudence so we can better interpret the law and the law continues to develop to better protect the society it serves. If arbitration becomes routinely mandated by the judges who apply this protocol, that will pose a more serious threat to our legal system as a whole.

The vast majority of the clients I work with are already firmly in the NCDR arena. With arbitration on the menu, even those cases that need the structure of a quasi-judicial process with binding decision making powers fit within the new protocol. A surge in private FDRs has taken place, driven by COVID-19 and as a result of the court system becoming increasingly clogged up. The confidentiality that mediation offers to clients who want to have a completely frank discussion to try to head off a fraught legal battle is a unique and valuable option. The time certainly feels right for NCDR to be given another push.