Lovers, not fighters – a changing approach to non-court dispute resolution (NCDR), and how to determine the best NCDR route for you!

Trainee Solicitor Izzie Denison is here to provide some useful guidance.

Izzie Denison, Trainee Solicitor

How things were:

“The courts cannot compel parties to attend alternative dispute resolution”, read one of the cue cards I flurried through in my preparations for my SQE1 exams last year.

Now, things are changing.

Churchill v Merthyr Tydfil County Borough Council – a turning point in the rules on NCDR

The change of tune to the court’s approach to NCDR arose out of a civil law rather than a family law dispute, in which a property owner, Mr Churchill, issued proceedings against the Council that owned a piece of land next to his garden. It was claimed that since 2016, a year after Mr Churchill bought the property, Japanese knotweed had been encroaching on Mr. Churchill’s property, thereby resulting in damage and loss of value and enjoyment of the property. Nightmare, right?

When the matter progressed to the Court of Appeal, among the issues before the court was whether the court has the power to stay proceedings contrary to one party’s or both parties’ wishes, and whether an order for non-court dispute resolution could be enforced, in the absence of any statutory power giving the court the authority to do so. It was previously considered that a referral to NCDR would only occur when both parties agreed to the process.

In its decision-making, the court considered circumstances where there was an out-of-court procedure in place (such as the Council’s formal complaints process in this case) and where a party fails to comply with such procedure even though it would have been a suitable way to resolve matters. In such cases, the court may find the out-of-court procedure to be appropriate in the first instance and that litigation should only be used as a last resort. The court in this case held that it could stay proceedings or order the parties to engage in a non-court-based dispute resolution process. This was subject to the provision that this would not infringe either party’s right to a fair trial and that the order was proportionate to furthering the legitimate aim of dealing with cases justly and at proportionate cost, saving expense and ensuring that cases are dealt with expeditiously and fairly.

The court held that the court need not have statutory power giving them the authority to stay proceedings, as the court has the power to make orders which make the system as fair and efficient as possible. The power to stay proceedings also allows the court the opportunity to facilitate the use of NCDR, as it is encouraged to do.

When determining whether to make an order to stay proceedings and/or order NCDR, it was held that the court should consider the following factors:

  1. The form of NCDR proposed.
  2. Whether the parties were legally advised/represented.
  3. Whether NCDR was likely to be effective or appropriate without such advice/representation.
  4. Whether it was made clear to the parties that, if they did not settle, they were free to pursue their claim or defence.
  5. The urgency of the case and the reasonableness of the delay caused by NCDR.
  6. Whether that delay would undermine the claim or give rise to or exacerbate any limitation issue (i.e. whether the period in which the claimant is entitled to make a claim would expire).
  7. The costs of NCDR, both in themselves, and relative to the parties’ resources and the value of the claim.
  8. Whether there was any realistic prospect of the claim being resolved through NCDR.
  9. Whether there was a significant imbalance in the parties’ levels of resource, bargaining power, or sophistication.
  10. The reasons given by a party for not wishing to mediate (for example, if there had already been a recent unsuccessful attempt at NCDR).
  11. The reasonableness and proportionality of the sanction if a party declined NCDR in the face of an order of the court.

Keep an eye out for our article, “The “Carrot and the Stick” – Is my spouse or partner obliged to negotiate and if so, how?”, which will explore what the court’s change of tune means for the rules governing NCDR in family law.

Now for a common scenario …….

My spouse and I are getting divorced, and I want to sort out the finances via NCDR if possible – what routes are available to us?

There are a variety of NCDR methods available:


The parties can either engage in discussions directly or via solicitors in order to raise and address their respective concerns and consider how each party’s needs and objectives can be met from the resources available. Once the terms of settlement are agreed, the parties’ solicitors will formalise this agreement by way of a binding and enforceable court order (known as a Consent Order).


A mediator is a trained and neutral third party, often a family law barrister or solicitor, that works with the parties to identify the issues in dispute and find the most sensible and practical solutions in this regard. This typically takes place over a series of meetings over a period of time.

The mediator’s role is to encourage a constructive dialogue in order to achieve a settlement that both parties are happy with. The mediator will often suggest the parties do some information-gathering to facilitate full and frank financial disclosure between them and may even indicate where specialist advice or expert reports are necessary to assist in the decision-making process.

Although the mediator may be legally qualified, their role is not to advise on legal matters, but rather to facilitate discussion and assist in relation to the necessary information-gathering and decision-making the parties need to undertake. It is therefore open to the parties to instruct solicitors “in the background” to help them clarify their legal position, assist with specific queries that arise in mediation or otherwise, and help them narrow the issues in dispute to achieve the outcome they are seeking.

If an agreement is reached, the mediator will circulate a mediation summary, known as a Memorandum of Understanding, to the parties, which sets out an outline of the agreed terms of settlement. In turn, the parties will instruct their legal representatives to formalise the terms outlined in the Memorandum in a binding and enforceable Consent Order to be filed with the court for approval. Depending on the representatives’ advice on how to do this, it may be that further negotiations are necessary to ensure that the order has the desired effect.


If you choose this process, the parties will agree to instruct trained collaborative solicitors. The parties and their solicitors will sign a Participation Agreement which sets out the parties’ and their solicitors’ obligations to each other and the collaborative process. It is a term of the Agreement that in the event the process breaks down, the lawyers are disqualified from representing their respective clients in court proceedings. The parties are therefore incentivised to be constructive in negotiations.

Once the Participation Agreement is signed, an agenda of issues to be resolved will be set, which will be discussed and eventually resolved following a series of meetings between each of the parties and their respective lawyers, and between all four participants. The parties will also agree the procedure for full and frank financial disclosure. There may be scope for specialist advice and/or expert evidence to be sought. If the terms of settlement are agreed, the lawyers will formalise these in a binding and enforceable Consent Order, and file it with the court for approval.

Early Neutral Evaluation (ENE)

This involves an impartial third party, usually an experienced and legally qualified person, that guides the parties to settlement and offers a non-binding “indication” of the likely outcome at trial. The role of the evaluator is to stress-test and “reality-check” each party’s suggested settlement proposals, evaluating the strengths and weaknesses of each party’s case and their chances of success in the formal court process. The evaluator will often outline a range of likely outcomes in the event the matter was to proceed by way of court proceedings, and then offer their own view as to where within the range the parties would be best advised to look for compromises and concessions.

Private Financial Dispute Resolution (PFDR)

Owing to the workloads of judges and backlogs in court listings, the parties may have to wait a significant period of time before a court-based Financial Dispute Resolution Appointment (FDR) can take place, and even when the parties do attend the hearing it is unlikely that the judge will have been able to fully digest the disclosure and information the parties have obtained up to that point. As a result, an increasing number of litigants are engaging in a form of ENE called private FDRs (PFDRs) in order to achieve finality and certainty earlier (and thereby minimise costs).

Before a PFDR hearing, the parties will exchange their individual proposals for settlement. At a PFDR, a senior family lawyer (often a barrister) or a former judge will be appointed by the parties, usually for a whole day, to consider the evidence available in the case so far and to hear submissions from the parties’ legal representatives in relation to their respective settlement offers. The “judge” will offer their indication as to how the case should settle (effectively, the judge will say here, “if I was at a final hearing, this is what I would order” – this tends to incentivise parties to settle their case at the PFDR or very shortly afterwards.) However, throughout the course of the day (whether pre- or post-indication) the parties will be able to have discussions with their legal representatives (and negotiations with each other through their representatives) out of “court” with a view to reaching a settlement; the “judge” will be on standby and offer input as necessary/requested by the parties, including to help narrow the issues between the parties in the event the parties do not reach a settlement. If the parties cannot agree a settlement, the parties (and their legal representatives) will decide between each other, with the assistance of the “judge”, appropriate case management directions up to a final hearing.


Arbitration involves the input of an independent third party. Before the third party is appointed, the parties will be required to sign a form agreeing to arbitration and to the adopt the rules of arbitration as set by the Institute of Family Law Arbitrators (IFLA). The third party, the Arbitrator, is offered the appointment and then seeks the parties’ agreement to the terms of appointment. On agreement to these terms, the Arbitrator will contact the parties to gather information about their dispute and make proposals for appropriate procedure.

Thereafter, the format is similar to court proceedings (albeit in a more informal setting):

  • The Arbitrator will determine the procedure to be adopted at a preliminary meeting, amongst other necessary case management directions.
  • The parties have the opportunity to make interim applications where appropriate.
  • Hearings may be arranged. Where there are hearings, the parties are usually represented and cross-examined, with their legal representatives making submissions for the Arbitrator to consider.
  • The Arbitrator will make their final “award” (decision) in writing, usually within 28 days.

The parties’ legal representatives will then formalise the Arbitrator’s Award by way of a Consent Order, which will be filed with the court for its approval. (Note that the court will in virtually all cases uphold an Arbitrator’s Award.)

Which NCDR route is the right one for us?

There are a number of factors to consider in determining which NDCR route is the most appropriate one for your case, and your solicitor will be able advise you in this regard.


  • Cost-effective, owing to the speed and efficiency with which disputes may be resolved.
  • Less stress and emotional pressure compared to other forms of NCDR and court proceedings.
  • The parties may be able to reach agreements that the court may not have the power to order.
  • Minimises acrimony between the parties.
  • There is no guarantee as to what a court could order – the control the parties have during negotiations offers certainty.
  • There are no time pressures on the parties (albeit it is appreciated that the parties themselves will want to resolve matters as soon as possible).
  • Negotiation is typically most effective where the parties recognise that there will be concessions and compromises to be made, and that neither of them is going to achieve exactly what they want.


  • An impartial third party can help to “focus the minds” of the parties, thereby helping them to communicate constructively and co-operate, and minimising tension and hostility.
  • Cost-effective – the mediator will agree on a sensible timetable and help set an agenda for trying to agree on a settlement, thereby minimising delays and maximising the efficiency with which disputes can be resolved. Nevertheless, where the disputes at issue are low value, the costs of mediation may be disproportionate.
  • By indicating to the parties what information-gathering they should each undertake, the parties are more likely to reach decisions on an informed basis. However, there is no way for the mediator to compel the production of documentation and information, and so the process is often reliant on the good faith of the parties.
  • Confidentiality – discussions in mediation are “without prejudice”. This means discussions in mediation cannot be referred to in court proceedings if discussions break down and proceedings issued. This encourages the parties to be more open in negotiations and in exploring and examining options in a safe environment.
  • Control – the mediator cannot impose a binding decision on the parties. The parties therefore retain control in the solutions they reach, and such solutions can be tailored to the needs of the parties. The parties also have control over who they elect as the mediator, and either party can walk away from the process at any time.


  • Less acrimony compared to other forms of NCDR and court proceedings.
  • The Participation Agreement acts as a reminder to each of the parties (and their legal representatives) of their obligations to each other, thereby encouraging a constructive dialogue between the parties.
  • There are no time pressures on the parties, and they can move through the process at their own pace (albeit it is appreciated that parties themselves will want to resolve matters as soon as possible).
  • Facilitating full and frank disclosure between the parties enables them to make decisions on an informed basis.


  • Control – unlike in court proceedings, the parties can select the evaluator/“judge”, the venue, and, where appropriate, the parties can agree to adapt the process and in effect bypass the information gathering requirements typically involved in the run-up to a court hearing.
  • Flexibility – the evaluator/“judge’s” indication can help “focus the minds” of the parties and encourage them to work towards a realistic settlement. Nevertheless, the indication is not binding and so allows the parties to depart from the evaluator’s/“judge’s” suggestions if they wish to do so.
  • Each party is given the opportunity to rehearse the arguments they were to use if their matter proceeded by way of litigation, and they are given a realistic indication as to how successful they are likely to be in court. However, there is a significant risk of a party becoming entrenched in their position if the evaluator’s/“judge’s” determination is in their favour, thereby hindering progress to settlement.
  • Cost-effective – although the parties will have to bear the costs of paying the evaluator/“judge” privately, ENEs and PFDRs minimise the costs incurred through delays in the court system and by potentially achieving settlement earlier than if the parties were relying on the court process.
  • The evaluator/“judge” will be someone with proven expertise in this complex area and is more likely to be thoroughly prepared, having had the time to absorb the background reading and to read into and understand the issues in dispute, than a court judge. Further, unlike in court, the evaluator/“judge” will be available to hear and deal with the parties’ case throughout the day and thereby offer more assistance to facilitate a settlement being reached compared to a court judge, including helping the parties to narrow the issues between them.
  • Confidentiality – the offers made, the proposals advanced and the evaluator’s/“judge’s” indication and advice take place “without prejudice”. This encourages the parties to be more open in negotiations and in exploring and examining options in a safe environment.
  • Convenience – ENEs and PFDRs can take place at any time at any place by any means as agreed between the parties, in accordance with their availability and that of their legal representatives and the evaluator/“judge”.
  • ENEs and PFDRs tend to be most effective if the parties are able to narrow the issues in dispute for evaluation, and are not suitable for large, complex and/or fact-heavy disputes.


  • Control and flexibility – not only are the parties able to select the Arbitrator (from a panel), they are also offered the opportunity by the Arbitrator to give their thoughts on appropriate procedure including a suitable timetable. The process can be adapted according to what is needed for the case at issue to progress.
  • The Arbitrator’s award is binding – arbitration therefore offers finality to what is a stressful and emotional time for parties, but there is limited scope for appeal if a party is unhappy with the decision.
  • Cost-effective, owing to the speed and efficiency with which matters can be resolved.
  • There is versatility in the types of financial disputes it covers. The parties are also able to limit the issues for the Arbitrator to determine, thereby minimising costs.
  • Confidentiality – this offers a safe environment for parties to make their case.
  • The Arbitrator is continuously and directly involved once appointed – this ensures that the process stays on track, thereby minimising disruptions and delays.

Top tips

  • You need to think realistically as to how constructive your discussions with your spouse/civil partner would be in any form of NCDR. These methods are most productive (and most cost-effective) when there is good communication and less animosity between the parties, such that they are open to hearing each other’s views on an appropriate settlement agreement.
  • Think about whether you and your spouse/civil partner would benefit from third-party involvement. This will be particularly effective where parties are at a stalemate.
  • There is no escaping the fact that costs will be incurred. Although NCDR is intended to preserve the costs that would otherwise be incurred in court proceedings, any third-party involvement and/or expert or specialist advice and evidence required will not come cheap. Costs can vary depending on the number and nature of issues in dispute, and on the method of NCDR you choose.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.

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