Mediation Column: Shifting sands and MoJ stats
So, 18 months in, how is the NCDR push playing out?
Family law is going through a time of change. The rubicon was crossed in April 2024 with the introduction of new court procedure rules that bake an expectation of non-court dispute resolution (NCDR) into the family court system. It’s not compulsory, but with the risk that a judge might stay a case for mediation (factor in the wasted time and associated costs of going to court for that outcome) or may even make a costs order against a litigant who’s failed to properly engage with non-court options, we’re pretty close to compulsory, and certainly a lot closer than seemed thinkable not long ago.
There are two goals behind embedding an expectation for NCDR into the court procedure rules. One, to reduce the number of cases going to court to take the pressure off an overloaded system, and two, to enable a more family-focused process that supports those caught up in a relationship or family breakdown to move through it with the least damage done. In this column I will consider what the evidence indicates on reaching those goals 18 months on, and the inter-relationship between the goals.
The list of cases showing the changes have teeth is growing. The early trailblazers being: NA v LA [2024], where litigation was paused for NCDR with the divorcing couple ordered to report back to the court on progress; and AM v RF [2024], which saw a 50% costs order imposed on the wife for not engaging sufficiently with NCDR. Mrs Justice Knowles also made this pithy observation on the importance of the court’s role in promoting engagement with NCDR, in X v Y [2024]: “Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children.” So, the litigation risk is established, and more examples of stays and costs orders have followed.
What story do the court figures tell then? Ministry of Justice stats for 2024 show 108,657 couples filed for divorce last year. There were 45,564 financial remedy applications, up 3% year-on-year. And 51,473 private Children Act cases began, up 1%. These are headline figures for a year that began before the changes came in. For what it’s worth, the first quarter of this year saw financial remedy cases up 1% and private Children Act cases down 1%.
There’s no simple reading of these figures, and it’s important to remember there’s likely to be a lag in divorce proceedings beginning and applications to court, and a family case and a finance case doesn’t necessarily mean two families. It’s hard to gauge then what percentage of divorcees see the inside of a courtroom on their journey. But, broadly, there’s clearly a long way to go before the system and society are fully aligned with the view of the President of the Family Court, Sir Andrew McFarlane, that divorcing couples don’t have a legal issue, rather a relationship problem, and that the court should no longer be the first port of call, but the last resort where there aren’t issues of domestic abuse or protection or safeguarding. Speaking to BBC Radio 4’s Broadcasting House programme, the President estimated that at least 1 in 5 of the family cases that end up in court should not be there, and said: “parents are fooling themselves if they think children are unaffected”.
So, with family court cases still persistently high, what is going on? Remember the public mockery that greeted Gwyneth Paltrow and Chris Martin’s announcement in 2014 that they had decided to “consciously uncouple”. She has since said her driver for putting family wellbeing first in divorce was because “I had not grown up around a lot of divorce, and the divorce I had been privy to had been bitter, acrimonious, unending.” (British Vogue, August 2020). They wanted to do it differently, but the public judgement said it all about how high-conflict separation aligned more comfortably with social expectations, without understanding or discussion around the impact on the children, even though most children of divorce will know it deep in their bones. It’s not divorce that is the problem, it is how it is done that matters. Look at Gwyneth and Chris now – many people are – and she says: “Instead of people approaching me with, ‘Why did you say that?’, they now approach me with, ‘How do you do that?’”
Which brings us back to the inter-relationship between the twin NCDR goals of reducing pressure on court and protecting family wellbeing. Here’s the main menu of options on offer – “kitchen table agreement”, mediation, collaborative law, one-lawyer-one-couple, early neutral evaluation, private FDR, arbitration. All would successfully meet goal 1 – reduction of cases in court. Not all necessarily achieve point 2 – a more psychologically-informed divorce. And there’s another off-menu option to factor in, which is one of the most popular for divorcing couples – go to court without a lawyer. Divorce can be expensive, and for couples who can’t agree, being a litigant-in-person is probably the cheapest way to do it. More than a third of cases in court – 38% (MoJ Family Court Statistics, June 2025) – now involve both sides representing themselves. Fewer than 1 in 5 (19%) of cases have lawyers on both sides in court. This time of change risks leading to a two-tier system, similar to a family law version of private versus NHS.
With courts open to reporters, removing confidentiality (see my last column on Standish v Standish) and lengthy wait times, it’s not hard to imagine a scenario where family court becomes the domain of public law cases and those who have to go, or can’t afford to go private, while those who can are channelled towards private FDRs, ENEs, arbitration and mediation. There are options offering mediation for those who can’t afford it – the government family mediation voucher (£500 towards the cost of mediation for children issues) and Legal Aid mediation (the benefits of which Stuart Hanson outlines elsewhere in this issue), but this support is limited.
We are in a time of change. All who are gatekeepers and pathways along the road taken are shaping the map. Protecting a client’s “best interests” is the north star that decides the route and its impact.
NCDR allows for a much broader understanding and delivery of what “best interests” really are. Divorce is a long game that can play out over a lifetime, not just financially but in terms of relationships, protected or broken. What does moving forward well look like? How would you define “best interests”?
See you in a couple of months when I’ll be talking about what good looks like in divorce.