Non-Court Dispute Resolution in 2026: Is Mediation Now Compulsory in Family Law?

What Is Non-Court Dispute Resolution?

Non-court dispute resolution, or NCDR, is the term the Family Procedure Rules now use for any method of resolving a family dispute other than through the court process. The definition at FPR 2.3 was deliberately widened in 2024 and includes mediation, arbitration, evaluation by a neutral third party such as a private financial dispute resolution hearing, and collaborative law.

It replaces the older term alternative dispute resolution, or ADR. The name change matters more than it might appear. Alternative implied a departure from the norm. Non-court simply describes where the process happens, and the rules now treat it as the expected first step rather than the exception.

What Changed on 29 April 2024

The Family Procedure (Amendment No 2) Rules 2023 overhauled Part 3 and amended Part 28 of the Family Procedure Rules. A new pre-action protocol for financial remedy applications followed on 31 May 2024. Three changes matter most in practice.

1. The Court No Longer Needs Your Agreement to Pause Proceedings

The old rule allowed the court to adjourn for NCDR only where the parties agreed. That requirement was removed. Under FPR 3.4(1A), where the timetable allows sufficient time, the court can encourage parties to undertake NCDR and adjourn proceedings so that it can happen, whether or not both sides are enthusiastic about the idea.

2. You Must Tell the Court Your Position on Form FM5

Parties must set out their position on using NCDR on Form FM5 and file it at least seven working days before the first hearing, or as the court directs. The form asks what NCDR has been attempted and, if none has, why not, and whether an exemption applies. It carries a statement of truth. In practice, it is also the document that gets pulled out later when costs are argued.

3. Costs

In financial remedy proceedings, the general rule is that the court makes no order as to costs. FPR 28.3(7)(aa) now requires the court to have regard to any failure by a party, without good reason, to attend a MIAM or to attend non-court dispute resolution. That is expressly a reason to depart from the usual starting point.

What the 2026 Financial Remedies Court Guide Now Expects

The Financial Remedies Court Guide, published in March 2026, consolidated and replaced the previous Efficiency Statements. It is the single most useful document for understanding how the court now approaches these cases, and it considerably hardens the NCDR expectation.

The Guide expects parties to have engaged in at least one form of NCDR before proceedings progress, unless there is good reason not to. Judges are to consider NCDR at every stage, not merely at the outset, and may delay or suspend proceedings where no attempt has been made. It also confirms that open offers must be made within 21 days of a private FDR, bringing private FDRs into line with the court process.

Paragraph 24 of the Guide draws specific attention to the costs rule. The message to practitioners is not subtle.

MIAMs: What They Are and When You Can Be Exempt

A MIAM is a Mediation Information and Assessment Meeting. It is a meeting with a qualified mediator, attended before an application is made to court, at which the mediator explains the options and assesses whether the dispute is suitable for resolution outside the court process. In most private children and financial remedy cases, attending one is a precondition of issuing an application.

Exemptions exist, and they are not narrow. They include evidence of domestic abuse, cases involving child protection concerns, urgency, where one party cannot be contacted, and where there is no authorised mediator within a reasonable distance. The 2024 rules tightened the process for claiming an exemption, and the court can and does check whether the exemption claimed was valid.

Attending a MIAM is not the same as agreeing to mediate. It is an assessment. A mediator may conclude that mediation is not suitable, and that conclusion carries weight.

Mediation, Private FDR, Arbitration or Collaborative Law?

These are not interchangeable. They differ in who makes the decision, whether the outcome binds, and what they cost. The right choice depends far more on the dynamic between the parties than on the size of the assets.

A private FDR deserves particular mention because it most closely reproduces what would otherwise happen in court. Both parties are usually represented; they can be kept apart if necessary, and both hear the same independent assessment of the likely outcome at the same time. That combination is often what makes compromise possible.

The Costs Risk Is Real, but It Is Not Yet Uniform

The courts have begun to give the costs rule teeth. In AM v RF [2024] EWFC 288 (B), a private law children appeal was adjourned to allow the parents to obtain advice about and then undertake NCDR, with costs reserved and a costs order following. In the financial arena, RKV v JWC (No 2) [2025] EWFC 429 (B) is among the decisions showing an increasing readiness to penalise obstructive conduct, building on Peel J’s observation in HO v TL (Costs) [2023] EWFC 216 that an unreasonable failure to make sensible attempts to settle is itself a form of litigation misconduct.

The picture is not uniform. Commentary published in the Financial Remedies Journal in 2026 argues that judges in the Financial Remedies Court remain reluctant to make costs orders in needs cases, notwithstanding the reforms and notwithstanding strong language from the High Court bench. Anyone planning a case around the assumption that a costs order will follow a refusal to mediate should treat that assumption with caution.

Matthew’s Experience

That said, judges are very much alive to the new rules and will, likely, have received training and or encouragement to ensure that parties and practitioners adhere to them. So, a party who has without good reason failed to engage in NCDR may not at once have a costs order made against them, will find their application is likely to be adjourned by the Court to provide them with an opportunity to attend mediation. To this end, the Form FM5 certainly should not be overlooked and, on the contrary, it should be completed with some care and appropriate candour. Clients must therefore all be advised at the outset of a case of the new rules and the requirement – save for in urgent and/or exceptional circumstances – to be seen to have engaged in or at least promoted NCDR.

Re X and the Judicial Mood

The case that set the tone was Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam). At a directions appointment following an unsuccessful FDR, Mrs Justice Knowles took the opportunity to give a judgment addressed to practitioners at large. She observed that the adversarial court process is not always suited to resolving family disputes, provided any alternative can be managed safely and appropriately, and described the parties’ failure to engage in any form of NCDR before issuing proceedings as unfathomable.

Her reasoning drew on the civil courts. In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal held that a court may order parties to attempt to resolve a dispute outside the court process, or stay proceedings to allow that to happen, provided the power is exercised proportionately and without infringing the right to a fair hearing under Article 6.

NA v LA [2024] EWFC 113 then gave the revised Part 3 its first substantive analysis, noting how underused the existing powers had been.

Matthew’s Experience

The dichotomy which Re X illustrated so starkly was that whilst Mrs Justice Knowles’ ruling was in and of itself entirely laudable, it sat uncomfortably (to say the least) in the factual matrix of the case and bearing in mind the personalities of the parties. In fact, it is fair to say that it was a paradigm example of a case wholly unsuitable for mediation because of the all too apparent power imbalance, in terms of financial resources and control, temperament, and the psychological dynamic which existed between the parties. In short, there were good and legitimate reasons why the dispute required the intervention of the Court and why mediation had not been considered. For some – potentially vulnerable – parties they see the Family Court as offering a degree of protection and they expect that the Court will, with a due degree of objectivity, deliver justice and fairness. In the eyes of such litigants, it feels as if the Court has effectively abrogated its role, if it declines to do so and instead expects them to parley in an environment where there is all too often an inequality of arms. Most people do not want to go to Court (in the same way they would rather not go to A&E) but they do expect it to be there if they need it.

Where the Policy Reaches Its Limit

None of this means every case belongs outside court. The people who will engage constructively with NCDR are, to a large extent, self-selecting. They tend to be parties who are not frightened of one another, who accept that each will have to give something up, and between whom there is a rough equality of arms.

That is not every separating couple. Where one party has held the money, the information and the power throughout a relationship, and has used them, an expectation that the other should sit down and negotiate directly is not neutral. It transfers an advantage. Mrs Justice Knowles was careful to say that resolution outside court is appropriate where the process can be managed safely and appropriately. That qualification is doing a great deal of work.

There is also a wider question: whether the enthusiasm for NCDR reflects a genuine belief in its merits or the reality that the courts are under-resourced. Both can be true at once, and the second does not invalidate the first. To be honest, they are not the same argument.

Matthew’s Experience

For the wise would-be litigant, his new culture of proactive encouragement to engage with NCDR should only be side-stepped in genuinely legitimate circumstances; i.e. those expressly set out in rule 3.8 of the FPR, including evidenced domestic abuse, child protection concerns and/or urgency.

It follows therefore that any client contemplating making an application to the Court must be advised about these rules and the imperative that if an exemption is to be claimed it must be legitimate. As in any contested proceedings, the credibility of the parties is a most important factor and a party who has either failed to attend a MIAM and/or otherwise litigated unreasonably (as per the broad range of reasons set out at rule 28.3(7)) will find themselves criticised by the Court and placed on the back foot strategically for the balance of the proceedings.

What This Means If You Are Separating in 2026

Five practical points.

1. Assume you will need to attend a MIAM, and book it early. In most cases, it is a precondition of issuing, and mediators have finite availability.
2. Take advice before you complete Form FM5. It carries a statement of truth, and it will be read again when costs are considered.
3. If you have a good reason not to engage in NCDR, document it at the time rather than explaining it later.
4. Choose the process to fit the dynamic, not the value. A private FDR and mediation suit very different situations.
5. If your case involves abuse, coercive control, or a serious imbalance of information or power, say so early. Exemptions exist precisely for these circumstances.