Important revisions to both FPR Part 3 and Part 28 came into effect on 29 April 2024 when the material parts of the Family Procedure (Amendment No. 2) Rules 2023 came into force.

The financial remedies pre-application protocol (annexed to PD 9A) was rewritten by the Financial Procedure Rule Committee (effective from 31 May 2024). A new pre-application protocol for private law children proceedings (Annex 2 PD 12B) was also effective from 31 May 2024.

Both protocols reiterate the provisions in respect of MIAMs in Part 3 before issuing a court application and detail the steps a party must have taken to engage in NCDR. Paragraph 2.1 of PD 9A states:

‘The pre-application protocol annexed to this Practice Direction outlines the steps parties should take to:

• seek to resolve their dispute without applying to court, for example via non-court dispute resolution, and
• seek and provide information from and to each other before making any application for a financial remedy.

The court will expect the parties to comply with the terms of the protocol.’

Amongst other revisions a new FPR 3.3(1A) allows the court to require parties to file and serve ‘in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings’. This is Form FM5. Details as to how the Form FM5 works in practice are set out in an amended PD 3A.

A further revision was that r 3.4(1)(b), which permitted the court to adjourn for NCDR only ‘where the parties agree’, was replaced by an amended r 3.4(1A) which provides that where ‘the timetabling of proceedings allows sufficient time for these steps to be taken’, the court should ‘encourage parties’ to ‘undertake non-court dispute resolution’. The parties’ agreement to an adjournment for that purpose is therefore no longer required.

PD 3A was also amended with effect from 29 April 2024.

In financial remedies cases, the power to ‘encourage’ at r 3.4(1A) is now backed by r 28.3(7)(aa)(ii), which expressly makes any failure by a party, without good reason, to attend NCDR a reason to consider departing from the general starting point that there should be no order as to costs. This point is repeated in para 10E of PD 3A (‘the court may take the parties’ conduct in relation to attending non-court dispute resolution into account when considering whether to make an order for costs in relation to the proceedings’). An unreasonable failure to attend NCDR is therefore now on the same footing in the rules as other litigation misconduct.

There was a similar amendment to the costs rules that apply to other family proceedings (for example CA 1989 Schedule 1 applications, interim applications and appeals) and to applications under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Families and Dependants) Act 1975 by way of an amendment to CPR Part 44 with effect from 1 October 2024 when the Civil Procedure (Amendment No. 3) Rules 2024 entered into force. From that date there was an insertion within r 44.2 (Court’s discretion as to costs) at sub-rule(5)(e) so the conduct of the parties to which the court will have regard in deciding what order (if any) to make about costs includes ‘whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution’ (as it is referred to in the CPR).

In Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 the Court of Appeal sidestepped the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 and determined it is permissible for the court to order that the parties attempt to resolve their dispute via NCDR prior to seeking a judicial determination and/or stay proceedings to allow for NCDR to take place but held that this power was circumscribed. Sir Geoffrey Vos MR summarised at [65]:

‘The court should only stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.’

If applied to family proceedings, that element of the court’s reasoning might be considered to pose an interesting question as to whether arbitration under the IFLA scheme is among the forms of NCDR which the court can ‘encourage’ almost to the point of mandation (arbitration being specifically referred to in the amended definition of NCDR). This may turn on whether the court’s residual discretion, to decline to uphold an arbitral award which is subject to a successful challenge, tantamount to an appeal, provides sufficient access to a full judicial hearing.

The Court of Appeal did not set out any guidance as to how or at what stage in the litigation the court should decide to make such an order, with Sir Geoffrey Vos MR commenting that ‘it would be undesirable to provide a checklist or a score sheet for judges to operate’ although some potentially relevant considerations were highlighted at [61] to [63].

The changes to the CPR referenced above and other changes – which clarified (expressly) that the court has the power to order parties to participate in NCDR – were made as a consequence of Churchill v Merthyr Tydfil CBC.1

But what about the case law – family and civil – that has followed the rule changes?

In X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024] 2 FLR 800 Gwynneth Knowles J gave a ruling:

‘[2] … because I consider it might be helpful for those involved in family proceedings, whether concerning money or children, to understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate. Furthermore, I want to signal that, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable. Changes to the Family Procedure Rules 2010 (‘the FPR’) which are due to come into effect on 29 April 2024 will give an added impetus to the court’s duty in this regard.’

Gwynneth Knowles J stated at [5] that she regarded the parties’ failure to engage in any form of NCDR before issuing either financial remedy or children proceedings to be ‘utterly unfathomable’.

Gwynneth Knowles J also said that to assume Churchill v Merthyr Tydfil CBC was of limited relevance to family proceedings (at [15]) ‘is unwise’ as:

‘[t]he active case management powers of the CPR mirror the active case management powers in the FPR almost word for word2 and both the civil and the family court have a long-established right to control their own processes. The settling of cases quickly supports the accessibility, fairness and efficiency of the civil, and I emphasise, the family justice system.’

In NA v LA [2024] EWFC 113 per Nicholas Allen KC (sitting as a deputy High Court judge) the applicant had not attended a MIAM claiming an urgency exemption under r 3.8(1)(c)(ae).3 The court considered that the exemption (even if validly claimed) was no longer applicable. The court therefore stayed the financial remedy proceedings and required the parties to inform the court by a specific date what engagement had been made with NCDR.

In HJB v WJB (Financial Remedies) (Separation Agreement – Application to Show Cause) [2024] EWFC 187 per HHJ Vincent, having determined as a preliminary issue that a separation agreement reached between the parties stood and would be ‘presumptively dispositive’ when the court came to consider the s 25 factors, said:

‘[125] The parties will need some time to reflect on the decision and consider directions. In accordance with the changes to the Family Procedure Rules Part 3, Practice Direction 3A and Part 28 of the Family Procedure Rules, 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 in this litigation.’

In A v M (No. 3) [2024] EWFC 299 Sir Jonathan Cohen concluded his judgment in the following way:

‘Mediation

[43] This case cries out for mediation. H will argue, I am told, that if the case is reopened as to the calculation of W’s interest in Fund 1, he will argue that the judge seriously over-valued his interest in Fund 2. I know nothing about the detail of it other than it appears to be common ground that the fund has underperformed.

[44] I will need to hear from counsel as to whether any such mediation takes place before or after the Court of Appeal has ruled on my determination of the construction summons. However the benefits of such mediation are obvious and the body language of the parties in court indicated to me that they agree. I have the power to adjourn proceedings for that mediation to take place, and it is a power that > I intend to exercise having considered with counsel when an appropriate time would be.’

In AM v RF [2024] EWFC 288 (B), a private law children case, HHJ Greensmith at the first hearing dismissed an appeal from the Lay Magistrates, reserved the question of costs, and adjourned the proceedings under r 3.4(1A) for the parents to consider using NCDR and directed the matter to be re-listed on the first available date after 56 days for the court to take stock of the progress made by the parents and to give further directions or make an order as to the costs of the appeal. The judge was clear that:

‘the extent to which each parent engages will be a significant factor in informing me what order to make in respect of costs or whether to make any order at all. … Information provided to the Court regarding engagement in and the success or otherwise of NCDR (eg Mediation) will inform the exercise of the Court’s discretion regarding costs.’

At the subsequent hearing he stated:

‘[19] My judgment could not have been clearer; the court has done everything it can to try and promote the parents to engage in mediation. Having told the parents that their input into the mediation process would inform any decision as to whether a costs order would be made or not, it would be inconsistent not to make an order if I formed the view that one parent did not engage, adequately in the mediation process. I make the following findings:

a. The father has actively engaged in trying to engage the parents in mediation and has taken reasonable steps to ensure the parents’ engagement in the process.

b. I take note that whilst the father has offered mediators, he has offered private mediation and not initially taken steps to source mediation with a family franchise nor has he offered to pay for both parties mediation, they are small criticisms but they are there.

c. I do not find that the mother has been actively opposed to mediation or deliberately frustrated mediation but do find that she has not engaged in the process with sufficient enthusiasm and proactivity to absolve herself of responsibility for the process not working.

d. It is open to the court when a costs application for costs has been made to make an order for costs to order party to pay a proportionate of the costs.’

Thereafter he ordered the mother to pay 50% of the father’s costs.

In WZ v HZ [2024] EWFC 407 (B), which dealt with the implementation of a final financial remedies order, at an early directions hearing it was recorded on the face of the order that husband proposed dealing with the parties’ issues by way of arbitration and that he would provide the wife with £7,500 to cover her legal costs for the same and that this offer had been refused by the wife. In his judgment, District Judge Doman considered the wife’s refusal of (at [122]⁠(v)]) the husband’s ‘reasonable offers of alternative dispute resolution’ to be one of a number of elements of ‘litigation misconduct’.

In DF v YB (No. 2: Costs) [2025] EWHC 76 (B) Recorder Nicholas Allen KC stated:

‘[26] I have no doubt that in due course there will be a family case in which a failure by a party without good reason to attend (or engage in) NCDR will be considered to be litigation conduct and justify a costs order whether the applicable rules are the FPR or the CPR. Even prior to the rule changes, a failure to mediate was penalised in costs (H v W (Cap on Wife’s Share of Bonus Payments) (No. 2) [2015] 2 FLR 161 per Eleanor King J (as she then was)).’

In an unreported case in March 2025 in the Family Court sitting at Newport (but which is the subject of a Financial Remedies Journal Blog – ‘NCDR Update – Are the Tides Turning for Failing to Mediate?’ the respondent’s solicitors took the opportunity to write to the court upon receipt of the application to notify it that PD 9A had not been complied with by the applicant’s solicitors and, despite multiple invitations to engage in NCDR, all attempts to do so had been declined with the stated reason being that the applicant simply preferred the certainty of court proceedings. The court listed the matter for hearing to consider the specific issue of NCDR compliance. District Judge Matthew Barry determined that the pre-application protocol was clear: NCDR has to be explored unless there is a good reason not to do so. In the words of the Summary of the Protocol (at paragraph 1) ‘[e]veryone is required to comply with the terms of the Protocol, even if they have not had professional advice from a legal representative’. The court adjourned the proceedings for five months, after which the parties were to jointly write to the court setting out what engagement there has been with NCDR. The court also awarded the respondent their costs in respect of the hearing, which were incurred directly as a result of the applicant’s failure to comply with the new provisions.

In A v B [2025] EWFC 127 Trowell J was concerned with a mother’s application for a lump sum for litigation costs funding under Schedule 1 to the Children Act 1989. It is a case where there had been a very large amount of litigation between the parties including previous Schedule 1 proceedings which led to a final hearing before Francis J in July 2022. There was, said Trowell J at [20], ‘unequivocal condemnation of the father’s behaviour by Francis J throughout his 2022 judgment’.

In respect of this application the father had offered to pay for mediation. Trowell J therefore posed the question at [34]: ‘Should I just send the matter to mediation and not make a costs allowance at all?’ He went on to answer the question as follows:

‘[35] I record at this stage that the issues raised in the mother’s C100 do appear to be matters that the parties should (in a normal case) be able to sort out without the necessity of a final hearing. In broad terms she wants to ensure that, save for agreement, termtime contact takes place in England (rather than Territory A, or nearby), that the existing contact order be adjusted in relation to holidays and special days, that there be a discharge of a specific issue order in relation to C’s attendance at a language club, that there be variation of passport holding arrangements, and that there be a fresh s. 91(14) order.

[36] There are two problems though with the suggestion of simply referring the matter to mediation. First, given what the mother has experienced from the father she cannot just sit down in a room with him and a mediator. She has been harmed by what she has lived through. She reasonably needs the support of a legal team around her. Second, the father’s proposal does not extend to meeting her legal costs – indeed that is what this hearing is about. So, although I could agree that private arbitration might work as readily as court, or indeed a private dispute resolution appointment might work, those forms of NCDR will have legal costs parallel to those we are arguing about.’

It is of note (although the point does not appear to have been argued before him) that Trowell J seems to have proceeded on the basis that the court had the power to adjourn for mediation (i.e. to mandate the same) rather than simply stay the proceedings as a means of encouraging the parties to do so.

There are also a number of civil cases where the impact of Churchill can be seen.

In Northamber Plc v Genee World Ltd and Others [2024] EWCA Civ 428 (which post-dated Churchill and pre-dated the changes to the CPR) the court considered the failure of the defendants to respond to an offer of mediation made on behalf of the claimant. An Ungley order had been made as part of an early case management order but no witness statement setting out the reasons for not engaging in mediation was ever filed. The judge rejected the claimant’s contention that the defendant’s failure to mediate and to comply with the case management order should result in an adjustment of the costs orders that would otherwise be made. Arnold LJ stated:

‘[103] … It is almost 20 years since this Court held in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 that an unreasonable refusal to participate in alternative dispute resolution constitutes a form of unreasonable litigation conduct to which the court may properly respond by applying a costs sanction. It is over 10 years since this Court held in PGF II SA v OMFS 1 Ltd [2013] EWCA Civ 1288 that silence in the face of an invitation to participate in mediate is, as a general rule, of itself unreasonable even if a refusal might have been justified by the identification of reasonable grounds. Furthermore, in the present case, DJ Rouine’s order required both Mr Singh and IES to explain their reasons for refusing to mediate, but neither did so. In those circumstances Northamber contends that the judge should have held that Mr Singh’s and IES’s silence in response to its offer to mediate was unreasonable conduct and that this should have been reflected in the judge’s costs order.

[104] I agree that the judge fell into error. Mr Singh and IES were silent in the face of an offer to mediate. That was in itself unreasonable. To compound matters, they breached an order of the court requiring them to explain their failure to agree to mediation. If breaches of such orders are ignored by courts when deciding costs, parties will have no incentive to comply with them. That would undermine the purpose of making them, which is robustly to encourage parties to mediate.

[106] The more difficult question is how Mr Singh’s and IES’s conduct should properly be reflected in costs. Although costs sanctions have been imposed in a number of cases for an unreasonable refusal to mediate or for silence in response to an offer of mediation, it does not automatically follow that a costs penalty should be imposed: see Gore v Naheed [2017] EWCA Civ 369 at [49] (Patten LJ). Rather, it is a factor to be taken into account among the other circumstances of the case.

[107] Given that the costs order in respect of Northamber’s claim against IES must reconsidered anyway, I shall confine attention at this stage to the judge’s order that Mr Singh pay 70% of Northamber’s costs of the claim against him. He reached this decision taking into account the extent of Northamber’s success, the extent to which costs had been incurred on issues where Northamber had succeeded and Mr Singh’s conduct. Northamber contends that Mr Singh should be ordered to pay 100% of its costs. In my judgment this cannot possibly be justified by Mr Singh’s failure to respond to Northamber’s offer to mediate. Equally, however, I do not think that it would be right to impose no sanction at all for Mr Singh’s conduct. I consider that the correct response would be to impose a modest, but not insignificant, costs penalty by increasing Northamber’s costs recovery by an additional 5% to 75%.’

In Francis v Pearson; Francis v Burston [2024] EWHC 605 (KB) – a libel case between neighbours – His Honour Judge Lewis (sitting as a judge of the High Court) considered that mediation remained a possibility even where this had been previously unsuccessful:

‘[87] I can see that the parties have already attempted mediation.

[88] Experience shows that it is often in entrenched cases such as this that ADR can make a real difference, often requiring honest conversations with parties as to the merits of their respective cases, and the potential downsides, as well as looking at pragmatic ways forward.

[89] As part of the process, mediators might also see the parties together, without their lawyers, to try and explore ways forward.

[90] In a case such as this, it might also be possible for agreement to be reached on ancillary matters that help the parties move forward, but which the court may not have the power to order at trial.

[91] The parties need to reflect on the reasons why the cases did not settle at mediation, and the costs of continuing this litigation – not just in terms of money, but the personal costs to each party for example from the time and energy spent fighting, the stress and worry the proceedings might cause, particularly in respect of outcomes, and the impact that it is going to have on the wider community in which they live.
[92] I would strongly recommend that the parties re-consider some form of alternative dispute resolution process – which might include further mediation, or some other way of facilitating agreement – before matters in this case move forward and further costs are incurred.’

In Elphicke v Times Media Ltd (formerly Times Newspapers Ltd) [2024] EWHC 2595 (KB) Master McCloud stated:

‘[133] It has always been the case that dispute resolution (or ADR, or DR) has been important as a means to avoid the use of court and parties resources. Since Churchill and decisions such as that of my learned former colleague Master Thornett in Worcester and in Jenkins, this has become all the more important. At time of finalising this judgment, amendments to the CPR came into force further promoting the court’s powers and duties in relation to considering directing ADR, see Civil Procedure (Amendment No.3) Rules 2024 (SI 2024 No. 839).

[134] Here there remains the prospect of long, expensive Detailed Assessment proceedings with counsel and costs lawyers occupying perhaps several days, at a cost comparable with that of many trials. In all cases where the claim is at an end, such as here, but significant costs are incurred and must be determined, in my judgment it would be remiss of a judge not to make use of the principles in cases such as Churchill and direct that, before a fresh set of proceedings is in effect commenced so as to lead to detailed assessment there must be proper dispute resolution. I fully expect such an order to (need to) become the norm when a judge directs detailed assessment unless costs are agreed.’

At [137] Master McCloud therefore directed of her own motion that the parties must engage in ADR as to the costs claimed by the defendant and:

‘Good reason will need to be shown if the form of that dispute resolution is at any less engaged a level than mediation via Costs Lawyers given that the Bill here more than justifies Costs Lawyer input. The time for commencing detailed assessment is to be extended until conclusion of any such mediation, or the point at which either party indicates it is not prepared to proceed and wishes to go to assessment. Any party which decides not to engage in ADR, as above or to ‘call it off’ must be in a position to justify that non-engagement to the Costs Judge and be alert to the provisions of CPR 44.11 and indeed the developing common law since Churchill.’

In DKH Retail Ltd and other companies v City Football Group Ltd [2024] EWHC 3231 (Ch) Miles J heard a pre-trial review in relation to a trademark dispute between the owners of the Superdry brand, which is registered in relation to various kinds of clothing, and the defendant, which ran Manchester City Football Club’s commercial operations. The claimants applied for an order for compulsory mediation before the trial. The judgment states as follows:

‘[31] The claimants submitted that [the changes to the CPR with effect from 1st October 2024] recognise a sea-change in the approach of the courts to ADR. They said that another important aspect of the overriding objective is to ensure that the court’s resources are properly allocated not only to the parties but to other court users.

[32] The claimants referred to the findings of the Civil Justice Council ADR Working Group that mediation has worked in complex and entrenched disputes, including where the ADR process appeared to be unlikely to succeed and where one or other party believed that he or she had a strong case.

[33] The claimants contended that this is a case where the court should exercise its power to order a mediation. They said that the dispute is capable of resolution: it is not a particularly complicated one, and there are several variables in the dispute between the parties which might allow an out-of-court compromise (and which might not be available in a judgment of the court). These include agreement about the form and size of any logo or lettering on the relevant sports kit, payment of money, and the timing of any changes.

[34] The claimants note that there has been no mediation to date, although there have been unsuccessful settlement negotiations. The parties are about to incur hundreds of thousands of pounds of further costs. A short, sharp, mediation of one day before the end of December may well allow the parties to avoid at least some of those costs. This would also potentially save court time and resources.

[35] Counsel for the defendant submitted that, while there was no dispute about the power of the court to order mediation, it should only do so where there was a realistic prospect of success. He submitted that this was not such a case. On the contrary, both parties wanted their position to be judicially determined. He said that … his client is entitled to a judicial determination of that question. He submitted that mediation was not realistically likely to lead to settlement.

[37] Counsel for the defendant also says that it is very late in the day to seek the order, that the parties have already spent hundreds of thousands of pounds, and that the trial is imminent. He also says that his client had very limited availability for a mediation in December. In short, it is too late in the day; it is not a case where his client is being obstructive; mediation will fail; and this is a case where a ruling is needed.

[38] As to the last point, in many cases the parties’ positions in the litigation are diametrically opposed and it may easily be said that each party requires a judicial determination. But nonetheless the parties come through ADR to recognise the desirability of settling for less than their strict legal rights and compromising their positions. Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences. Here, as the claimants said, everything would be up for grabs at a mediation, including the form of representation of any branding on the relevant kit, timing and money. The claimants are also right to say that the dispute is self-contained and that a mediation would be able to focus on possible solutions rather than raking over historical grievances.

[39] I see some force in the defendant’s submission that it is late in the day to be seeking an order, but it may also be said that there is some advantage in the parties’ positions having been crystallised through pleadings and the service of witness statements. It is indeed sometimes an objection to mediation that it is premature, proposed at a stage when the parties’ positions are unknown. That cannot be said here.

[40] There is also some force in the submission of counsel for the defendant that these are commercial parties with experienced solicitors and that if there was realistically to be a settlement, one would have expected it already to have been reached. But that argument does not do full justice to experience, which shows that bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate, even where sincere. The purpose of mediation is to remove roadblocks to settlement. I am unable to accept the submissions of the defendant that a mediation here has low prospects of success and that adjudication by a court is necessarily required. The range of options available to the parties to resolve the dispute through mediation goes beyond the binary answer a court could provide. There may be solutions other than yes or no.

[41] A mediation of this case will be short and sharp, and the documents needed for it would be brief. The defendant did not suggest that mediation would significantly disrupt the parties’ preparations for trial.

[42] Counsel for the defendant said that his instructions were that they had very limited availability in December. However, on the available material it seems it would be possible for the parties to find a workable date.

[43] I take account of all of the considerations identified by the parties. Overall I am satisfied that this is a case where I should order the parties to mediate with a view to seeking, if possible, to resolve the dispute between them and that it should take place during December 2024. The parties should report its outcome to the court as soon as possible after the mediation is complete.

[44] Postscript: on 13 January 2025 the parties notified the court that they had settled their dispute.’

New paragraphs were added to the Standard Financial and Children Orders with effect from 21 May 2024 to reflect r 3.4(1A).4 Orders 1.1 (para 81), 1.2 (para 52), 7.0 (para 72), and 7.1 (para 7) require the parties to file the Form FM5. Orders enabling the court to adjourn so that the parties may attend NCDR are already incorporated at 1.1 (para 73), 7.0 (para 43) and 7.1 (para 14).

The amendments made to FPR Part 3 represent the fruit of the FPRC’s consultation on the early resolution of private family law arrangements.5

Time will tell whether the amendments will herald a change in culture and interest in NCDR in a similar fashion to how PD 28A para 4.4 and recent case law has incentivised a culture change for the making of open offers.

From the FPRC’s perspective, the FPR provisions go to the edge of but do not represent mandation of NCDR, which was the subject of an MOJ consultation which decided against mandation. This power does now expressly exist in the CPR following Churchill.

Some, however, consider that the power of mandation already exists in family cases whether under rules or the court’s inherent jurisdiction. In Mediation: 50 years after Finer 174 NLJ 8078 p9 (5 July 2024) David Burrows stated that the ‘critical passage’ in Churchill at [58] – ‘as a matter of law, the court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court-based dispute resolution process’ (emphasis added) – had been ignored in both X v Y and NA v LA and therefore ‘[a]s matters now stand, we have two High Court judge decisions which overlook at Court of Appeal assertion as to ordering mediation’. He states that the powers available to the court to stay for mediation or to order are case management discretionary powers (CPR 3.1(2)(f) and FPR 4.1(3)(g) which state (in identical terms) that ‘the court may … (g) stay the whole or part of any proceedings … either generally or until a specified date or event’).

Given the more robust approach to the making of costs orders encouraged in financial remedy cases such as OG v AG (Financial Remedies: Conduct) [2021] 1 FLR 1105 per Mostyn J,6 these rule changes, the recent judgments, and the revised/new pre-application protocols may well create conditions in which many parties will have to ask themselves whether they can really afford not to participate in appropriate NCDR.

Perhaps before too long we shall see paragraphs in financial remedy and other family judgments similar to the following in the civil case of Conway v Conway and Another [2024] EW Misc 19 (CC) per His Honour Judge Mithani KC on 31 May 2024:

‘[129] I will deal with any outstanding matters and the issue of costs when I hand judgment down. One matter that seriously concerns me is why the Defendants did not agree to mediation when it was put to them. The importance of mediation can never be over-emphasised: see, for example, the recent decision of the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. The Defendants will have to advance compelling reasons why the offer of mediation was rejected out of hand by them.’

Despite being the successful party at trial the judge subsequently applied a 25% reduction to the defendant’s recoverable costs as a penalty for their unreasonable failure to engage with the claimant’s numerous offers of mediation.

Nicholas Allen KC
24 June 2025